UK: The Client Must Get Who It´s Promised

Last Updated: 13 August 2009
Article by Rupert Choat and Daniel Guilfoyle

Consultants' appointments and construction contracts often specify that certain individuals will work on a given project. This is because the client wants to ensure that, say, the big name architect he engages actually leads the design of his new building or the contractor's project manager he knows and trusts is the same person who oversees the works. Without a material representation or contractual provision as to who will be involved, the consultant or contractor usually has free rein as to how it resources the project.

A recent case underlines the significance of assurances that certain people will be involved on a particular project.

Fitzroy Robinson were engaged as the architects for the development of three iconic buildings in London and Buckinghamshire. The Fitzroy team assigned to the project was led by Mr Jeremy Blake. However, while it was estimated that the project would take around three years, Mr Blake had in fact tendered his resignation before Fitzroy's appointment was concluded. This meant he would be available to the project for no more than the first year.

The Court found that Fitzroy did not tell the client that Mr Blake was leaving because it feared losing the appointment. Mr Blake was the principal reason the client had contacted Fitzroy in the first instance and one of the main reasons it was appointed. The judge agreed that Mr Blake's involvement was fundamental to the client's decision to engage Fitzroy and had they known of his early departure from the project an alternative firm of architects may have been appointed. According to the Court, Fitzroy should have brought Mr Blake's decision to the client's attention but instead a conscious decision was made to withhold this information. This amounted to fraudulent misrepresentation and deceit.

The client is now entitled to damages for the losses it suffered as a result. These may be modest. Even on the basis that but for the misrepresentation/deceit Fitzroy may not have been appointed, it was not proven that Mr Blake's departure caused any delay to the project. The client's entitlement may be limited to a reduction in Fitzroy's fees representing the disruption within Fitzroy and duplication of its work arising from Mr Blake's departure.

The reputational issues raised by this case are obvious. But, to compound matters, the Court also found that Fitzroy's chief executive "knowingly and dishonestly failed to correct the false representation as to Mr Blake's involvement in the project" before Fitzroy's contract was concluded and gave evidence that he knew to be untrue.

This decision is a warning to consultants and contractors to give careful consideration to the resources that they agree to utilise when carrying out work for a client. We recommend the following:

  • If an individual is proposed as a central part of the project team the simplest thing for the consultant/contractor to do is to make it clear that team members may change. However, the client may want to ensure that a key individual is involved on the project. In that case, it makes sense to provide expressly in the contract for that key individual to be involved and not replaced without the client's consent (not to be unreasonably withheld). While it is hard to ensure that a key individual remains involved, contracts occasionally provide for liquidated damages to be paid if a key individual leaves the project early (although it remains to be seen if such a provision is enforceable).
  • An individual may be named in the contract without providing for his replacement (if, say, an organogram in the tender becomes a contract document). The consultant/contractor may then breach the contract by failing to involve the promised individual. However, terms are likely to be implied requiring the consultant/contractor to notify the client promptly of a change in personnel and for the client to approve or reject a replacement in its reasonable discretion. The judge found such implied terms given that Fitzroy's contract named Mr Blake as team leader but said nothing about his replacement. Fitzroy also breached this implied term.
  • Overall: if it becomes apparent that a key individual will be not be available as proposed, it is advisable to inform the client as soon as possible especially if the relevant contract has yet to be concluded.

A client is unlikely recover substantial damages for a misrepresentation by a consultant/contractor that an individual would be involved in a project who was then not. However, in extreme cases, the client may avoid the entire contract. Alternatively, the client may have the right to injunct the consultant or contractor against involving a replacement until someone to its reasonable satisfaction is engaged. If the project is delayed or disrupted while a satisfactory replacement is found complications can arise as to who is responsible. As ever, it makes sense for all concerned to make as clear provision as possible in the contract for key individuals and their replacement.

Reference: Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 1552 (TCC)

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

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 13/08/2009.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions