It is typical to see clauses in standard consultancy agreements obliging the consultant to provide information (usually documents) to a client or to assist the client in handing-over a property to a tenant or in resolving disputes arising on the project. Less common are clauses that require the consultant to do more, such as give the client access to its personnel to enable the client to carry out a thorough review of the consultant's services. Such clauses should be treated with caution: they can be a burden and come back to haunt a consultant years after a project is over.

In another piece of Wembley litigation, the Contractor (Brookfield, formerly Multiplex) tried to rely on a clause requiring the Architect to give it access to its personnel so that it could carry out a full review of the Architect's services. The Architect refused, saying that this obligation ended on completion of its services (which, it said, were already complete). The Court disagreed with the Architect, saying this obligation continued after the services had ended and so the Architect had to cooperate.

The lessons to be learned from the Court's decision are as follows:

If you are a Consultant

  • Be cautious about agreeing to such clauses - you may be required to attend meetings and carry out detailed reviews of project documents years after the project is finished and you have other more pressing priorities
  • If you agree to offer such assistance but only for a limited period (e.g. until the services are complete), you must write that into your agreement - the clause in question here was silent on expiry, which worked against the consultant (particularly where other clauses included time limits)
  • Consider negotiating an additional fee for this extra work, or factor in a sum within the fee for the normal services - in this case the Architect was not entitled to more money for this work but that made no difference to the Court on the basis they could have allowed for this
  • Keep accurate records during the project and ensure they are accessible later to make the task more manageable if help is required

If you are a Client/Contractor to whom a Consultant is novated

  • Act promptly if you want to rely on such a clause and be aware of its limitations - as time passes, memories fade, documents get lost and people leave the organisation
  • Be prepared - ensure any meetings with personnel are as useful as possible by preparing lists of questions in advance, being clear about the purpose of the meetings, asking clear questions, etc
  • Consider offering an additional fee for the extra work as an incentive for cooperation

Reference: Brookfield Construction (UK) Limited v Foster & Partners Limited [2009] EWHC 307 (TCC)

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 13/03/2009.