CLOSE SEARCH
Consultants such as architects, engineers, quantity surveyors, and project managers play a central role in construction projects, often well before any contractor is engaged. They provide the technical, commercial, and managerial expertise needed to design, plan, and execute a development. However, their appointments carry significant legal and commercial implications.
The most common consultants include:
Architects - lead on conceptual and detailed design, coordinate other consultants, and often act as contract administrators.
Engineers - including structural, civil, mechanical, and electrical disciplines, who develop technical specifications and calculations critical to building performance and safety.
Quantity Surveyors - provide cost consultancy, manage procurement, and administer interim valuations and payments.
Project Managers - co-ordinate the design team and contractor(s), monitor progress, and often report to stakeholders on risk and programme.
Principal Designers - ensure health and safety risks are addressed during the pre-construction phase, as required under CDM 2015.
Each carries a distinct risk profile, and the appointment terms must reflect the specific nature and limits of their obligations.
Scope and Role - a well-defined scope of services is critical. Ambiguities often lead to disputes, particularly where services overlap. For instance, architects may be expected to inspect works on site, but whether that amounts to a duty to “supervise” or to “certify compliance” must be clarified.
Duty of Care and Standard of Performance - inexperienced or ill-considered drafting can cause problems. For example a very onerous duty of care care clause may not be insurable for a consultant.
Insurance Considerations - professional indemnity insurance is a key safeguard in consultancy appointments. However, PI cover is often subject to exclusions or limitations. Appointments should require consultants to disclose known exclusions and confirm the duration of coverage.
Architects are often required to coordinate design and obtain statutory approvals. However, they may also retain copyright in their work. Unless there is a clear licence or assignment of rights to the client, disputes may arise if the employer needs to use or adapt the designs—particularly if the relationship breaks down or fees remain unpaid. Their design liability may also extend to latent defects if duties are not clearly qualified.
Engineers (particularly structural and MEP consultants) - often bear responsibility for safety-critical elements. Their appointments should ensure duties are limited to exercising skill and care, not to guaranteeing structural integrity or performance. Particular care is needed where engineering consultants are novated or work alongside design-and-build contractors.
Quantity Surveyors - exposed to claims for negligent cost estimates or poor procurement advice. Where they act as Employer’s Agent, they may also bear responsibility for certifying payments or assessing extensions of time. Their duties must be carefully set out, and liability clearly linked to their professional role.
Project Managers - while not designers, often sit at the centre of programme and delivery. Their contractual role must be narrowly defined to avoid claims for delays or cost overruns that are the responsibility of the contractor. They should not be held accountable for the acts or omissions of others unless specifically agreed.
Principal Designers - appointed under statutory duties. Failure to manage pre-construction health and safety risks can give rise to civil or criminal liability. Their appointment must clearly define how design risk assessments and health and safety files are prepared and coordinated.
Consultants are frequently required to provide collateral warranties to funders, purchasers, or tenants. This ensures third parties have recourse in the event of design defects or delays. However, consultants may resist extensive warranties if they:
Increase liability beyond the main appointment,
Exceed their PI cover, or
Include uninsurable obligations such as “fitness for purpose”.
Negotiating these warranties at appointment stage avoids delays later in the project. Where appropriate, parties may agree third-party rights (under the Contracts (Rights of Third Parties) Act 1999) instead of separate warranties.
Consultants typically own the intellectual property in their designs, granting a licence to the employer. This licence should be:
Broad enough to allow use, amendment, and transfer,
Royalties-free and irrevocable (subject to payment of fees),
Capable of assignment or sublicensing if required.
If the employer intends to novate the consultant to a contractor under a design and build contract, the licence and copyright clauses must anticipate this.
In design and build procurement, consultants often start work under a pre-contract appointment, then are novated to the contractor. This raises several issues:
Consultants must agree to be novated from the outset, ideally by signing a three-party novation agreement.
Pre-novation services and liability should be preserved, so the employer retains recourse for early-stage work.
Contractors should ensure the consultant’s obligations post-novation are consistent with their delivery programme and insurance.
A poorly handled novation process can create gaps in liability, disrupt project flow, or result in disputes over design responsibility.
Appointments should include clear termination provisions, including rights to terminate for non-performance, delay, insolvency, or insurance failure. Termination should not compromise the employer’s ability to use existing designs or data.
Dispute resolution clauses should ideally include a tiered process, negotiation, mediation, and adjudication, to minimise formal litigation.
Get in touch
If you would like to speak with a member of the team you can contact us on:
Solicitor - Construction & Engineering
Daniel is a Consultant.
He is a Construction & Engineering law specialist and covers the full span of construction matters across a range of sectors including private wealth, office, living, logistics, hospitality & leisure and energy &am...
