I read Patrick Holmes' article "Words of warning" (17 January, page 50) on net contribution clauses and would like to point out two crucial facts that appear to have been overlooked in the article.
First, Holmes reported that "the negligent engineer was sued by its client". This is not true. It was assumed, for the purpose of legal arguments, that the fire to the building was caused by the negligence on the part of the contractor, subcontractor, architects and engineers.

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 This has been superseded by the ACE Agreements 2002 editions, so many of his arguments are invalid.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.

Postscript

Nora Fung, legal director, Association of Consulting Engineers, via email.