The Services: The Devil in the Detail
In a recent article (‘Contracts and the Need for Certainty’), we highlighted the importance of ensuring that a formal contract is in place with your Client(s). This helps ensure that both parties are aware of the terms of the appointment, and can assist in safeguarding your position should a dispute arise.
However, the simple fact that a Contract is in place can also be a double-edged sword if care is not taken when dealing with the services being provided.
The Position under the Contract
In general terms, the Contract will set out the requirements of the Client and the terms and conditions of your engagement. One of the key clauses is that you will provide the ‘Services’ with reasonable skill and care, however, the impact of this clause can often depend on what is meant by ‘Services’
Depending on the size of the project and the form of Contract being used, the Services can often take the form of a lengthy list added at the end of the document. As such, we would always strongly recommend that you take the time to review the ‘Services’ and any technical requirements as they are defined under the Contract before accepting them.
We appreciate that this can be a time-consuming exercise and, given that you will have already discussed the Project with your Client, you may believe that this is not necessary. However, as the terms of the Contract are likely to override any understanding you may have (especially if it is only the result of verbal discussions with your Client), it is important to ensure that the Contract is in accordance with your understanding of the Services to be provided.
There are two potential issues that can arise in connection with the Services noted under the Contract that can impact on your position:
i) Technical Specifications & Reasonable Skill and Care
The first issue, arising out of the recent decision in the case of Hojgaard v EON, relates to any technical specifications noted under the Services. Whilst previously, it was generally considered acceptable to rely on any technical specifications set out in the Contract, the position is no longer as clear cut, as the obligation to act with reasonable skill and care can effectively overrule the technical specification.
By way of example, your Client has instructed that a certain product which complies with a particular standard is utilised in the project. If it is later established that the particular standard is not appropriate, your Client may be able to argue that, had you exercised reasonable skill and care in the performance of your duties you would have advised them of that fact.
ii) The extent of the Services being provided
Whilst you may have a clear understanding of the Services to be provided, it is important to ensure that the Contract reflects that understanding. Problems can arise if the terms of the Contract include additional Services above and beyond what you believe you have been appointed to provide.
For example, you have been appointed to provide drawings in connection with an extension to an existing property and the role as you understand it is only to provide the drawings and have limited your involvement to that stage. However, the Contract also sets out that you will provide inspection services in relation to the Works and, as these have not been provided, the Client may have a claim against you.
Conversely, it is also important to ensure that the Services you do provide are tied into the Services noted under the Contract.
As an example, you have been appointed to provide the designs to support a planning application for a new build project and the Contract only provides for Services to that stage. However, as the project continues, your Client asks you to review and comment on a product specification and you provide the Client with advice. As a result, should it later be found that the advice was incorrect you may be found liable for that advice despite it not being one of the contractual services.
As the old adage goes, ‘the devil is in the detail’ and to safeguard your position it is important to ensure that you are aware of the Services and the technical requirements of the project before you enter into the Contract.
Read our previous article ‘Contracts and the Need for Certainty’
If you would like to discuss the issues raised in this article or if you have any questions about the services, we provide please contact us.