Consultants
| Author | Julian Bailey |
| Pages | 1355-1376 |
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CHAPTER 15
CONSULTANTS
Introduction 1355
Consultants’ appointments 1356
Architects 1357
(i) e profession 1357
(ii) Responsibilities in contract and tort 1362
(iii) Fees 1368
Engineers 1370
(i) e profession 1370
(ii) Responsibilities 1371
(iii) Fees 1374
Surveyors 1374
(i) Introduction 1374
(ii) Quantity surveyor 1374
(iii) Property surveyor 1375
Introduction
15.01 e term “consultant” is usually used to describe a person who provides purely ser-
vices for a construction or engineering project, as opposed to supplying materials and per-
forming work with them. It could be said that a consultant is a person who does not build,
but nevertheless provides project input. ere is, in today’s construction and engineering
industries, a great variety of consultants who provide services in general or sometimes very
specic elds. It is usual for architects, civil engineers, structural engineers, quantity sur-
veyors, and mechanical and electrical services engineers to be engaged in construction and
engineering projects. On some projects, particularly large retail, residential or commercial
building projects, it may be expected that consultants whose individual expertise concerns
such matters as planning, rights of light, environmental impact, environmental remedia-
tion, access for disabled persons, acoustics, landscaping, re safety and building mainte-
nance will be engaged. is reects the fact that construction and engineering projects
are often very sophisticated in their requirements, and that input from specialists is often
needed in order to ensure the successful completion of a project. One of the consequences
of this specialisation has been the emergence of multi-disciplinary businesses, who group
together consultants of various disciplines, so as to provide clients with a “one-stop shop”
for the specialist services they need for a project.1
1 A multi-disciplinary business is required to meet the professional and other legal standards of conduct for the
particular service it provides. us, if a rm consisting primarily of architects professes to be skilled in advising on
matters of structural engineering, it will be required to perform its services to the standards required of structural
engineers, and not of architects: see Pickard Finlason Partnership Ltd v Lock [2014] EWHC 25 (TCC) at [221],
per HHJ Stephen Davies.
CONSULTANTS
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15.02 is chapter considers the law as it applies to three of the major groups of con-
sultants, being architects, engineers and surveyors. e topic of professional negligence,
as it applies to consultants generally, is considered in Chapter 10.
Consultants’ appointments
15.03 Consultants are usually engaged pursuant to contracts that are referred to as
“appointments”.2 Consultants’ appointments are often very detailed as to the types of
services which the consultant is to provide, and how the consultant is to be remunerated
for providing those services. Other matters that are usually covered by a consultant’s
appointment include (i) nancial limitations on the consultant’s liability; (ii) insurance
(including professional indemnity insurance) that the owner requires the consultant to
have in place and maintain; (iii) warranties that the consultant is to provide in favour of
the owner and any third parties; and (iv) the owner’s (or another interested party’s) right
to use intellectual property generated by the consultant.
15.04 It is common in larger projects for a lead consultant to be appointed, to coordinate
the activities of the various consultants in the “professional team”.3 e obligations of the
lead consultant are usually dened in a contract of appointment, and may include an
obligation to recommend the appointment of trade contractors or other consultants, and
to co-ordinate the works and services of those persons once appointed, and to exercise
reasonable skill and care in doing so.4 A lead consultant may also be expressly obliged to
keep full and proper project records, and to allow the owner to audit those records and
obtain other project information on request.5 e obligation of a lead consultant may
extend to ensuring that prospective contractors or suppliers have adequate insurance
in place against the eventuality of the owner suering loss due to their negligence or
any accident.6 A lead consultant will also be subject to a duty to keep abreast of what is
occurring on site.7
15.05 In cases of where a contractor assumes “single-point” responsibility for the deliv-
ery of a project,8 it is common (certainly in England) for the obligations of consultants to
be novated from the owner so that they are owed to the contractor, with the owner being
able to look to the contractor for redress should there be deciencies in the consultant’s
performance.9
2 ere are a number of standard forms of appointment used widely in the UK construction industry. e types of
standard forms available in respect of consultants were considered in Chapter 3.
3 See in this regard McGlinn v Waltham Contractors Ltd (No 3) [2007] EWHC 149 (TCC) at [149], per HHJ
Coulson QC. A lead consultant need not have any specic professional qualication or aliation: see, in this
regard, Community Gateway Association Ltd v Beha Williams Norman Ltd [2011] EWHC 2311 (TCC) at [163],
per Akenhead J.
4 A lead consultant will not usually undertake strict or absolute responsibility for the performance of contractors or
other consultants involved in a project: see, by way of illustration, Midlothian Council v Bracewell Stirling Architects
[2018] CSIH 21. Compare Pratt v George J Hill Associates (1987) 38 BLR 25 (CA); Richard Roberts Holdings Ltd v
Douglas Smith Stimson Partnership (1988) 46 BLR 50 at 67–68, per HH Judge Newey QC.
5 Such an obligation may exist after the completion of a project: Brookeld Construction (UK) Ltd v Foster &
Partners Ltd [2009] BLR 246.
6 Pozzolanic Lytag Ltd v Bryan Hobson Associates [1999] BLR 267.
7 Carillion JM Ltd v Phi Group Ltd [2011] EWHC 1379 (TCC) at [127], per Akenhead J.
8 As is the case where the design and build form of procurement is used, and in analogous forms of procurement.
9 As to novation, see Chapter 20.
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