Lead consultant not liable for third party consultants (Midlothian v Bracewell Stirling)

Lead consultant not liable for third party consultants (Midlothian v Bracewell Stirling)

The Scottish Court of Session, Inner House upheld a first instance decision that a lead consultant was not liable for work carried out by third party consultants appointed directly by a local authority. Jonathan Spencer (Managing Associate) and David Fitzpatrick (Associate) of Simmons & Simmons consider the ruling.


Midlothian Council v Bracewell Stirling Architects [2018] CSIH 21

What are the practical implications of this case?

While this is a Scottish decision (and is, therefore, only persuasive rather than legally binding in England and Wales), it reinforces that when presented with competing contractual interpretations, the UK courts will consider the broader nexus of the parties’ relationship to arrive at a conclusion.

Construction professionals (and their PI insurers) can take comfort from the court’s decision that a lead consultant will not be held liable for consultants it has not instructed, or has no control over, unless expressly provided for in the contractual documents. The court indicated that to hold otherwise would signal a departure from accepted legal principle, and also commented that the risks that the consultant would have faced on the Council’s interpretation of the appointment ‘may not have been insurable’.

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About the author:

Jonathan is a Partner at Simmons & Simmons. He specialises in defending professional indemnity claims against construction professionals (including architects, engineers, and surveyors) and major contractors. He also regularly advises on complex, high value coverage disputes for London market insurers.

Jonathan has experience of a wide variety of construction disputes involving iconic buildings, sports grounds, schools, hospitals, large residential schemes, commercial/retail and waste to energy facilities. 
His caseload routinely involves mediations and litigation (generally in the Technology and Construction Court), and he also has arbitration and adjudication experience.
Jonathan has undertaken a year-long client secondment at a major international Insurer, which provided him with invaluable first-hand experience of the insurance market.