Ann Minogue’s recent article “You know it makes sense” (27 May, page 47) listed the wholly unilateral benefits of the new British Property Federation form of consultancy agreement compared with the forms of the Association of Consulting Engineers, the RIBA and the RICS.
In my experience these are rarely used anyway – the majority of our clients (major housebuilders, design-and-build contractors and the like) have their own standard forms that, perhaps unsurprisingly, are written in terms heavily in their own interests rather than those of the consultant.
However, at the insistence of our insurers, we have persuaded many of our clients to include net contribution and liability limitation clauses in their agreement forms. After all, what is the benefit to the client of having an agreement that takes the consultant outside the terms of his indemnity insurance?
Minogue says the response of the professional institutions to the omission of net contribution and liability limitation clauses in the new document is “utterly predictable” (that is, they are very unhappy) but hopes that their members might view it “more pragmatically”. Well, if our insurers and our institutions say we should not sign up, then we can’t and we won’t! We can’t be more pragmatic than that. Surely the institutions’ representatives on the drafting committee explained the implications of all this – unless they weren’t represented or consulted.
It is to be hoped that full discussions will now take place between all interested parties, that good sense will eventually prevail, and that the issues of net contribution and limited liability will be fairly and reasonably dealt with and included in a revised version.
Minogue’s enthusiastic support for the document is of course utterly predictable, as it turns out she helped to draft it.
Colin Toms, Colin Toms & Partners Consulting Engineers