which cover appointments by traditional clients and design-and-build contractors in respect of civil, structural and mechanical and electrical services. These will all be available in electronic form shortly.
This article gives a brief summary of the agreements and the revisions to the existing agreements.
The first agreement is a short-form agreement for use with a concise brief such as the commission of a report, a site investigation or a feasibility study. It is designed to be signed "under hand", or without a witness. The conditions are relatively short, covering the obligations of the parties, termination, limitations of liability and copyright. Details of the fee and services are to be set out in a schedule.
Then there is a subconsultancy agreement for use where the consultant is employed under the ACE agreements A(1) to B(2) only and is taking on a subconsultant. It is thus back-to-back with the agreements A(1) to B(2) and would not be suitable for use with other forms of consultancy appointments.
ACE has also published a planning supervisor's agreement that is jointly badged with the Association of Planning Supervisors. The format of the agreement and its terms are similar to the other ACE agreements but the duties are closely tied to the planning supervisor's duties under the Construction (Design and Management) Regulations.
A right has been given to terminate an appointment if a consultant considers that it would be irresponsible to continue
In agreements B(1) to C(2) the services to be carried out by mechanical and electrical engineers have been reorganised and there is now a choice between detailed design services and performance services. These are substantially the same as the schedules for abridged duties and performance duties in the 1981 ACE conditions agreement 4A. The ACE was advised by its members that these two types of services more closely reflect what they are asked to do by their clients, whether they are traditional clients or design-and-build contractors.
All the agreements have a clause that seeks to protect employees of the consultant's firm from direct claims by the client. This follows from the Merrett vs Babb case (see Building, 17 August 2001).
The principle of net contribution has been retained throughout the agreements but the clause has been extended to include a reference to arrangements such as joint insurance or co-insurance provisions that might have meant that the other party from whom the consultant would otherwise wish to seek a contribution was not liable to the client.
The reason for this extension is the Co-operative Retail Services case, where it was held that the professionals could not make a claim for contribution against the contractor and subcontractor with whom it was assumed they were jointly liable because they were jointly named with the client on the relevant contractor's all-risk insurance policy. The same problem might arise under other forms of joint insurance such as latent defects or project insurance or insurance for partnering arrangements. If such circumstances arise in the future, the consultant's liability should be restricted to its proportionate part of the losses as a result of this revision.
An express right has been given to the consultant to terminate the appointment if it considers that it would be irresponsible to continue. This was included as a result of evidence given to the ACE that some clients could not be persuaded to comply with their health and safety obligations.
Rachel Barnes is a partner in solicitor Beale & Company, www.beale-law.com.