Historically, the market approach within the construction industry has been to include in professional appointments a contractual obligation relating to a duty of care often equivalent to the common law duty to exercise “reasonable skill and care”.
In more recent times, new suites of standard form agreements, and certainly typical bespoke agreements, are moving away from this approach and adopting an “elevated” duty of care. Bespoke agreements are increasingly introducing fitness for purpose obligations with the obvious consequences for professional indemnity cover. This raises the question: Consultants – Is your duty of care under attack?
In this webinar, Will Buckby (Partner) and Simii Sivapalan (Solicitor):
- Provide a refresher on the standard of care imposed on professionals under common law;
- Discuss the potential implications of drafting which enhances a consultant’s standard of care; this may include policy coverage not responding;
- Debate the implications of absolute or strict obligations as well as performance based/fitness for purpose obligations and explain why they should be avoided;
- Examine the duty of care obligations in standard form contracts and highlight the changing approach to such appointments, with particular reference to the new suite of standard form appointments such as the FIDIC Consultants Model Services Agreement 3 Edition 2017 (White Book), the ACE Professional Services Agreement 2017 and the IChemE’s Professional Services Contract 2017 (Silver Book), which adopt “enhanced” standard of care drafting;
- Assess the approach to duty of care obligations seen typically in client bespoke agreements and set out the risks and mitigation steps in view of these;
- Highlight the lessons learned from recent case law, including the case of MT Hojgaard a/s v E.ON Renewables UK Robin Rigg East Ltd , which provides a timely reminder on the perils of imprecise drafting; and
- Identify practical tips to avoid the inherent risks with an enhanced duty of care.
Please click here for a copy of the webinar slides.
To view a recording of the webinar, please click on the video below.