This Practice Note looks at claims made against professional consultants (also known as construction professionals) on construction projects and issues that typically arise in these claims. It considers the potential sources of liability, the standard of care expected in carrying out services, and common claims/issues in relation to designers, contract administration and supervision/inspection roles. This Practice Note also highlights points to consider in relation to the quantum of claims and dispute resolution in the context of claims against a consultant. Consultants are typically engaged by a client to provide it with advice regarding the various aspects of the project and/or to ensure the contractor completes the works properly, on time, within budget and in accordance with the client’s requirements. They are not, in most forms of procurement, a party to the building contract or any sub-contract, nor are they responsible for carrying out any physical construction works. For further information on the key consultants (such as architects, engineers, quantity surveyors and contract administrators (eg project manager or employer’s agent)) and their main duties, see Practice

A claim for constructive dismissal is effectively an assertion by an employee that the decision to resign was not one made of their own free will but rather the circumstances within the workplace conspired to make such a decision inevitable. The case law has set an extremely high bar for complainants to prove that they were justified in resigning when seeking compensation. An employee ordinarily needs to show that there was either a breach of contract or unreasonable behaviour on the part of the employer, coupled with a very stringent requirement to formally exhaust the internal grievance procedure (although some exceptions are highlighted below). Section 1 of the Unfair Dismissals Act 1977 (Ireland) (UDA 1977 (IRL)), as amended, defines ‘dismissal’ for the purposes of the UDA 1977 (IRL) as follows: ‘(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether

This Practice Note considers the general principles of recovering damages for contractual breach, starting with the compensatory function of damages and the different kinds of damages for pecuniary and non-pecuniary losses, as well as nominal damages, damages under the Sale of Goods Act 1979 (SGA 1979), default damages clauses, contractual mechanisms for remedying a breach and interest on damages. Per Baron Parke in Robinson v Harman, a party who suffers loss as a result of breach of contract is entitled: ‘To be placed in the same situation, with respect to damages, as if the contract had been performed.’ Compensatory function of damages for breach of contract The normal function of damages for breach of contract is the same as that in tort, namely, compensatory (see, eg British Westinghouse v Underground Electric Rlys). The aim being to compensate the true loss suffered by the innocent party and place them in the same position, so far as money can do it, as if the contract had been performed. To this extent (and while there are exceptions,

In answering this Q&A, we have referred to a business-to-business contract. Contracts can be varied in a number of ways: • in writing • orally • by conduct • unilaterally (if permitted

This Practice Note examines the type of construction projects that the NEC contracts are intended to be used for and the key features of the NEC3 and NEC4 suites of contract. It looks at the style and structure of the NEC3/NEC4 contracts (including the main options, secondary options and Z clauses) and the principles adopted by the NEC in drafting them. It also considers some of the features which differentiate the NEC contracts from other industry standard forms (such as the Risk Register/Early Warning Register and early warning mechanism). Note that the NEC3 suite refers to the ‘Employer’ but, in the NEC4 suite, the employer is re-named the ‘Client’. For ease of reference, this Practice Note uses ‘Client’ in relation to both contracts. For a glossary of NEC terms, see Practice Note: NEC contracts—glossary. Introduction to NEC The NEC contracts are published by the Institution of Civil Engineers. The first contract published was the first edition of the New Engineering Contract in 1993. This was followed by a new suite of NEC contracts in 2005 (revised and re-published

Construction analysis: Tilbury Douglas Construction Ltd (‘TD’) was appointed in November 2013 to provide enabling works for the re-development of a former railway yard. The development would require the ground to be lowered and the enabling works were necessary to ensure this could be done without compromising the integrity of two railway tunnels. Ove Arup & Partners Scotland Ltd (‘OA’) was appointed by TD to prepare the design for the enabling works. The OA design required to be significantly altered and resubmitted for approval resulting in TD incurring irrecoverable cost. In July 2019, TD sued OA alleging breach of contract and breach of duty of care in relation to the original design. Both parties accepted that the loss as incurred in November 2013 when the enabling works contract was entered into, meaning that on the face of things, the claim was prescribed. However, following a preliminary proof, Lord Harrower found that the action could proceed because (i) the commencement date for prescription should be postponed to August 2014, as before then TD could not have reasonably been aware of the loss; and (ii) the period up to November 2014 should be discounted as part of the prescriptive period, because during that time TD, by reason of error indued by OA, refrained from raising a claim. (sections 11(3) and 6(4) of the Prescription and Limitation (Scotland) Act 1973 (PL(S)A 1973)). Written by Alastair Walls, legal director and solicitor advocate at Pinsent Masons.

Interpretation clause Clause ‘1.2 In this agreement:… …1.2.16 [[a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction;]…’ Drafting Note ‘Clause 1.2.16 might be particularly useful if a party is from a jurisdiction other than England or the subject matter of the agreement will, or may, extend outside England. However, if the drafter is aware of a real risk of legal action in a foreign jurisdiction, the inclusion of this

[On headed notepaper of the assignor] To: [Insert name and address of Assignee] [Insert date] Dear [insert name of Assignee] Assignment of contract We refer to the agreement between [insert name of other party to the contract being assigned] and [insert name of Assignor] (Assignor) relating to [insert specific purpose of agreement][, as amended from time to time,] dated [insert date] (Contract), a copy of which is annexed to this Letter and initialled by the parties to this Letter. [As part of an internal reorganisation of our group of companies OR As a result of [insert the business background to the

On 20 November 2024, the Supreme Court handed down its judgment in Secretary of State for the Department for Environment, Food and Rural Affairs and others v Public and Commercial Services Union (the Union). In a unanimous decision, in which Lord Sales and Lady Rose delivered the leading judgment, the Supreme Court upheld the appeal brought by the Union, and held that the Union were entitled to rely on third party rights under section 1 of the Contracts (Rights of Third Parties) Act 1999 (C(RTP)A 1999) to enforce a term in the relevant members’ contracts of employment providing for ‘check-off arrangements’, which was unilaterally removed by its members’ employers. The Supreme court confirmed the correct approach to applying C(RTP)A 1999, s 1(2) and held that, in the absence of an express term in the contract for enforcement by the relevant third party, as was the case here, where the relevant third party is identified as such in the contract and the term they seek to enforce purports to confer a benefit on them (satisfying C(RTP)A 1999, s (1)(b) and 1(3)), a strong presumption of enforceability arises as there is no express term stating the contrary. This presumption is only rebutted under C(RTP)A 1999, s 1(2), where it is shown that, on the usual objective approach to interpretation of contracts, the parties had a positive common intention that the obligation should not be enforceable by the third party. There was no indication of this in the individual contracts of the Union members in this case. Darshan Patel, barrister at Old Square Chambers (acting for the appellant), Nicholas Chronias, partner at DAC Beachcroft LLP, and James Wynne, barrister at Littleton Chambers, comment on the judgment.

This Practice Note considers the specific situations where a contract is required by law to be in writing: assignments, contracts for the sale of land, equitable mortgages, assents, transfers of shares, transfers of intellectual property rights, and guarantees. When a written contract is beneficial or a necessity Contracts can be formed in one of three ways: • orally • by conduct, or • ‘under hand’ (in writing) For more information on contract formation, see: Formation and interpretation—overview. Simple contracts are created in any of the above manners in ‘simple form’, whereas deeds must be executed in ‘solemn form’. See Practice Notes: Deeds and Executing documents—deeds and simple contracts. There are certain situations when a written contract is required by law or is necessary to satisfy registration requirements. Contracts are required by statute to be made or evidenced in writing for: • assignments • contracts for the sale or other dispositions of an interest in land (as opposed to the actual conveyance, which must be by deed) • dispositions of an equitable interest or trust • assents • transfers

The position of an employee on a company's insolvency The general rule is that a contract of employment is between the employer and the employee. This means that due to the personal nature of the contract, if either party changes, the contract in its current form should terminate. However, if this were always to be the case when a company changes its status due to an insolvency occurrence, every contract of employment would automatically terminate. This is not necessarily to the benefit of the employee or the company and so employment contracts can operate differently in insolvency situations. The usual approach taken is that how the employment contract is treated depends on the particular circumstances of the company, including whether it is continuing to trade or not. Contracts of employment are also treated differently depending on the insolvency event, as set out below. Reference should be made to the relevant sections of the Insolvency Act 1986 (IA 1986) set out below. The legal position of employees

1 You have become employed under a contract of employment under which you are or can be required to do Sunday betting work that is to say, work— 1.1 at a track on a Sunday on which your employer is taking bets at the track, or 1.2 in a licensed betting office on a Sunday on which it is open for business. 2 However,