Second, the wording of the Association of Consulting Engineers net contribution clause paraphrased by Holmes is taken from the 1995 Conditions of Engagement (2nd edition, 1998). This has been superseded by the ACE Agreements 2002 editions, so many of his arguments are invalid.
The new net contribution clause in the ACE Agreements 2002 has been redrafted to include a reference to arrangements such as joint- or co-insurance provisions. The ACE has taken this step to deal with the difficulties raised in the case of Co-operative Retail Services vs Taylor Young.
Although the best option would clearly be to revisit insurance arrangements, it isn't available at this stage. Still, attempts are being made to address this issue and until such an arrangement is widely adopted, the ACE will continue to advocate the implementation of net contribution clauses.
Nora Fung, legal director, Association of Consulting Engineers, via email.