FAME webinar: Duty of Care When Providing Services

• Thank you Kenneth. Can everyone, I’m hoping that you can all hear me clearly. So, yeah. And just to maybe continue the introduction of myself. My background is as a civil engineer, I’m actually a chartered civil engineer. But, having started working in construction, I became more interested in parting in the contracts and legal side. And as Kenneth said that the risk management side of things.

00:50 - So that led me to do a law degree and then later an oil and gas law master’s degree. So I’ve got the sort of practical background of being on sites and understandings this just the world of construction, as well as having the sort of law background. So what we’re going to talk about today is the standard of care in contracts. So when, as professionals we’re working on contracts, whether they’re sort of maybe a construction professional or archaeologist or whatever, the contract will always define or contain something in there that sets out what is expected of you as a professional doing some work. And there are pitfalls in what your contract might say that could fall into, if you’re not careful.

01:45 - So this is what we’re talking about today. And the main pitfall is inadvertently signing a contract that says that you will do something that is fit for purpose. So Fit for Purpose is obviously a quite a popular phrase that as we can see from these headlines that I just took out of general websites and newspapers, and what have you. It’s abandoned about phrase that’s used quite commonly, and it’s got a sort of commonly understood term. But actually, in legal terms and in contract terms, it’s actually got a quite a specific legal purpose, legal meaning, should I say that that actually sort of mean something.

02:35 - And it’s effectively sets out the standard of care that somebody doing any work under a contract is expected to do. And the reason that as professionals providing professional advice that we don’t want to be signing up for Fit for Purpose provision, will come clear from hopefully from what I’m gonna be saying over the next 20 minutes or so. So as I said, it’s got a strict legal meaning. And effectively, what saying that something is fit for purpose means, is that, whatever you’re doing or providing under a contract means that the thing that you are doing or providing will absolutely strictly comply with the performance criteria that is expected of the thing that you are doing. And even if something happens and you as a professional, do everything use reasonable skill and care, and do everything properly as far as being a professional, like, as I said, archaeologist, civil engineer, quality architect, whatever.

03:54 - If you have done everything properly, not being negligent in your work and whatever you have designed or produced fails to be fit for purpose, and you’ve signed a contract that says you’re going to do that, you can be liable for it. So just to sort of try to put it in more sort of easy to understand terms. There are different standards as to what one, a person signing a contract or doing any work is expected to do, depending on what the nature of the work is that you are providing. So if you are somebody that is manufacturing goods or building works, then the standard that is expected of you is fit for purpose. So let’s just sort of backtrack and sort of think about what that means.

04:43 - So if, as a construction, if you’re a construction contractor, then it is expected that if you build a bridge at that, and it is expected to last for 25 years say, that bridge will get your traffic from A to B, it will not crack. It will not fail. It will not collapse. And you will be expected as a construction contractor professional to build something that will perform all of those tasks and functions and perform in a certain way. On a more sort of easy to understand sort of day to day level. It also applies to people supplying goods. So if I go to the shop and I buy a kettle and I exchange good money and take this kettle home with me, then I have a reasonable expectation that it will boil water in a reasonable time, over the expected life or that kettle. I want to be able to boil water in my kettle for what’s reasonable like five years, without it getting silted up or failing or whatever.

05:44 - So anybody that builds bridges or manufacturers kettles is expected to commit themselves to provide the goods or the works that will meet those standards. However, and this is the important point. When it is somebody that is a professional person providing advice and services, the standard is different. And the common law standard that is expected of these professionals, providing advice and services is not fit for purpose. It is that you’re expected to use reasonable skill and care. So provided that you have used reasonable skill and care, then it is not expected that you have to meet such a strict, absolute standard is as if you’re providing goods or works.

06:38 - So, for example, if, we’re talking in this sort of archaeological world here, you’re not expected to identify every single, forgive me, I’m not in your world, so I might be saying stupid things here, but you’re not expected to go and identify and date and name every single thing that is on your site within 20 minutes of its life. You’re just, it’s what’s reasonable in the circumstances. What and the other archaeologists given the same scope of work would be expected to do in the same circumstances. A doctor is a professional. A doctor is not expected to make every patient better. The doctor goes in and does whatever the best, reasonable level of skill and care that a doctor is expected.

07:39 - You’re not gonna a hundred percent cure every single patient. But the doctor has to be, perform to the standard that is expected of a doctor. A lawyer, isn’t going to win every case in court. But you get a lawyer sued if they’re negligent. They fail to meet the standard that’s reasonably expected of a professional. And it’s important that when we’re working under contracts, that your construction contractor or your kettle provider, yep. They can sign up for a contract that their kettle or their bridge will be fit for purpose. But as on the professional side of doing work need to not sign up that our services, our advice will be similarly fit for purpose. We only be what wants to be expected to have done what’s reasonably expected for suitably experienced and qualified professional. And that is using the appropriate level of reasonable skill and care.

08:34 - And as I said, we’ll find out why this matters shortly. Just to give a bit of background, this is established, how English law works is established by practise and case law over the years. And then things get put into statute to reflect that. So just as a backup, just to let you understand that if these two different standards of care, it actually is put into statutory English law. So we’ve got the Sale of Goods Act 1979, which again is talking about supply of goods.

09:08 - And there’s actually an implied term that goes into any contract of the sale of goods. That actually says that you have a reasonable right to expect that all goods that have been manufactured or supplied by somebody will be fit for purpose for which the goods are normally used or supplied. So again, when I go and buy my kettle, if I haven’t got, if the contract doesn’t say anything about the standard of kettle I’m buying, this Sale of Goods Act will imply a term into that contract that says that I am reasonably entitled to expect that my kettle will be fit for its purpose. So I can go back to the shop and the shop can say, well, you didn’t have that in your contract. And I can say, well, yes, I have, because this Sale of Goods Act implies that term into my contract for the goods that they will be fit for purpose.

09:59 - And it’s also, it goes a bit further than that. But if it’s a specific purpose and the buyer of the goods tells the manufacturer, or the sense of that, should I say the seller of the goods that they want to use, whatever it is they’re buying for a particular purpose. And the seller says, yes, you can use whatever I’m selling you for that purpose. Then again, it becomes an applied term. But if that wherever is doesn’t then meet that standard again, you have an obligation to sort of compensate that person. So moving on to services, it’s similarly also set in the statute law in the UK, that as a professional, when you’re providing services, you’re only expected to use reasonable skill and care.

10:42 - So again, if you go and engage an architect to deal with your house, planning or whatever, or you provide, or an engineer or an archaeologist or whatever. Whenever you’re providing, engaging professional for anything and you have a sort of contractual commitment with such a professional, rather than it being an implication in your contract, that that person will provide the service and they will be fit for purpose. So your architect, your house will never fall down whatever. Or the structural engineer says your house would ever fall down whatever. Your structural engineer is actually only expected to do the design to the reasonable skill and care expected of a reasonably qualified and competent structural engineer.

11:29 - So it might be that house does fall down because there’s an unexpected hurricane, that’s the worst hurricane ever that’s happened in the UK, et cetera. If the house falls down provided that the person doing the advice providing professional services has used reasonable skill and care, i.e. they did it to the standard expected of their industry. They’re not going to them be liable if their design wasn’t up to it, something unexpected standards, if something, it failed in some unexpected event. That’s going further than what the reasonable skill and care provision is.

12:04 - So in a way, your common law position protects professionals because of this assumption that you’ll use reasonable skill and care. But, and now we come on to the (indistinct) of the day really. These common law and statute law positions allow you to change that position. If you sign a contract that says something else. So if as a professional, your signing up to a contract, you might think this is fine. I’m a professional providing advice.

12:44 - I can’t be sued if I get it wrong, because if it turns out my advice isn’t fit for purpose, because all it was expected of me is to advise using reasonable skill and care. But, if you have signed a contract that says your advice as professional will be fit for purpose, then if it turns out that your advice hasn’t been fit for purpose, you can become liable. So an example I just gave, a structural engineer designing a house. If it falls down in one in 10,000 year condition, okay, yes the person has used reasonable skill and care and done the best advice in the circumstances, based on the standard of that person’s profession. However, if they didn’t advertently signed a contract that says the building you designed will be fit for purpose, and it will never fall, then you can be liable for that.

13:39 - If you’ve inadvertently signed a contract that says that. And this is very, very easily done. So, and what we want to do is to, as professionals, make sure we are reading and understanding the contracts that we’re signing up to. And looking out for a term that goes further than reasonable skill and care. So you’ve got reasonable skill and care here. You’ve got fit for purpose up here. As professionals, we always want to be making sure that our contracts are just limited to using reasonable skill and care.

14:12 - And the best way to do that is to make sure it’s literally written specifically in the contract. Now, when you sign up to your professional appointments, whether your client is a developer or a main contractor or whatever it is, whoever you’re working for. If they’re giving you a proper consultancy type professional type services agreement, you will normally find that one of the early clauses is, a reasonable skill and care clause. It will say, the consultant shall provide the services using reasonable skill and care. Or it might say, the consultants shall provide the services using the reasonable skill and care, ordinarily expected of consumerlerly qualified and experienced consultant providing services similar to the services. That’s great.

14:57 - So that, if you’ve got that clause in your contract, you’re generally fine provided it’s drafted to override other things. I will come onto the next lines to see an example of where this didn’t work. So if you’ve got that in your contract, you’re generally fine. And the reason is good, because a failure to use reasonable skill and care as a professional is that’s what the definition of negligence is. Of professional negligence. So as a professional, this is the standard of skill and care you’re expected to use.

15:29 - If you fall below that, then that’s what negligence is. And that is why as professionals, we all have professional indemnity insurance. And your professional indemnity insurance responds and protects you where you have been negligent. So say you gave some advice and it actually wasn’t, it wasn’t fit for purpose. It was, you failed to use reasonable skill and care. And it was proven as that was negligence i.e. you went to court and some other expert witnesses from your clients that actually, yes, it wasn’t what a properly qualified archaeologist would have done in the circumstances. It did fall below the standard of reasonable skill and care. Well, then, okay, it’s a fair cop, and that’s what your PI insurance will respond. So any losses that flow from breaching the standard of skill and care, fine, that’s what your PI insurance is for.

16:25 - However, you do need to know that, the PI insurance will not respond when you haven’t been negligent. So if it’s getting a little bit complicated at this point, but effectively, if you have inadvertently signed a contract that says that you are going to not use, you’re gonna go further than reasonable skill and care, and you’ll get your work is going to be fit for the purpose. And then it turns out to this not fit for purpose, but you haven’t been negligent. It’s just, you’ve done everything properly, but even adversity signed fit for purpose type provision in your contract, your PI insurers gonna go, well, bad luck. You’re on your own. You’re you’re uninsured. You shouldn’t have accepted that. So going back to our unfortunate structural engineer who inadvertently signs a fit for purpose provision in the contract, he might go, well, I used all the reasonable skill and care expected of a structural engineer.

17:17 - This unexpected event happened, the house fell down, oh gosh, I’ve got this loss that I’m liable for. I nevermind. I’ll go to my PI insurers and they’ll go, well, hang on, you’ve signed a contract that says that what you’re doing is fit for purpose. So that’s not an insurable loss as far as professional negligence goes. So again, we need to be careful. So having given you all of the warnings, I need to sort of maybe go a little bit further and say that fit for purpose also in your contract, won’t necessarily even say that. There’s other wordings in the contract that could make your obligations become absolute fit for purpose type obligations.

18:03 - So we’ve got some examples here in the blue text. So if it says the consultant warrants that the works will comply with the specifications or the consultant guarantees that when complete the work will satisfy performance criteria. Or the consultant will ensure that the design life, the design will achieve its design life of 10 years. All of these types of things effectively are absolute obligations to gain is rising. So raising your duty of care as of consultant to this next fit for purpose type of level, and you’re getting up to sort of obligations there that as a professional, you should be avoiding.

18:42 - You need all of this type of provision caveated with an overarching reasonable skill and care provision. So, again, it can be costly if you’ve inadvertently signed up to something that goes further than you should. And again, I’ve seen on this slide about the professional indemnity insurance not responding to anything that is, goes further than just this, a breach of circling care i.e. beyond the standard negligence. So, if as a professional, you’ve used reasonable skill and care on your design, and there haven’t been negligent, the structure that you’ve designed, or the advice that you’ve given fails. It doesn’t have to be something as dramatic as a structure fail.

19:33 - It could be obviously somebody relying on the advice you’ve given. If, cause in sort of professional world quite often, it will be, if you’ve got a fitness for purpose provision or contract that sort of says, the consultant sort of guarantees that the advice is, meet some sorts of specifications or something, and then your client relies on that advice. And it turns out that what you had done, wasn’t correct. You can have that sort of loss for those claims coming back at you. And so you just do need to be careful. And the example that’s come through the courts in recent years on this, which I hope demonstrates the issue without startling everybody too much was this, Hojgaard and E.

On, 20:24 - a case that came up through the courts, the English courts over the last couple of years. What happened here was that it was for the design, it was about the designer of some foundations for wind turbine on an offshore wind farm. So what happened was that the effectively, that the foundations for these wind turbines were designed by the contractor, and the contractor was told in the contract to use a certain design standard, this DNV standards wind turbines, standard J101. And the contract said that they should use that standard, they did use that standard. But it turns out that there was an error in that standard and the factor, I can’t quite remember what it was, but it was something like the factor of safety on the design of these foundations was wrong by a factor of 10, which meant that actually the design that was then done based on this contractors’ work was effectively, it failed.

21:28 - And it meant that they had to dig out all of the foundations for these wind turbines and regrout them all at a cost of 26 million euros. So that was, the question then was, has the contractor or the designer in this case done things properly. What did the contract say? What was the obligation of the design contractor in this contract reasonable skill and care or fit for purpose. And it all came down to how the contract was awarded. So effectively, there was two elements in the contract.

22:02 - As probably most of your professional appointments, you’d be familiar that there was a terms and conditions of the contract. And they had the nice sort of reasonable skill and care type of wordings in there. So the contract says that, the contractor designs the works with due care and diligence expected of appropriately qualified and experienced designer. So effectively that’s a reasonable skill and care type of thing. It’s not really a much of a higher standard than that in a professional manner with good industry practise.

22:32 - And good industry practise, I believe, was sorted defined as a reasonable skill and care type provision. And then it also says, that the works when completed by the contractor should be in accordance with this agreement and shall satisfy any performance specifications in this agreement. So you’re getting a little bit off the reasonable skill and that care thing there, because it says that the works when you’ve designed will satisfy the performance criteria. So that was in the contract, in the terms and conditions. Lower down the contract, there was some employers requirements that says, that the contractor shall use the design standard, for wind turbines, which as I said, is actually where the error was.

23:13 - And then, right down in the bottom of the employer’s requirements in Section 3.2.2.2, which must’ve been the document was probably about this. And this is where at the back of this document, there was a little stinger in the contract that says, the design of the foundations shall ensure a lifetime of 20 years in every aspect. So what actually happened is that in, the Court of Appeal, the judge in the Court of Appeal said, well, hang on a minute. That was so deep, buried deep, that 20 year design life thing was so buried deep in the contract, that it wouldn’t be reasonable to have expected that ensuring a design life of 20 years was the main criteria of the contract.

23:57 - And then all these other nice reasonable skill and care type things up at the front of the contract where the overarching things, and they should be taken as the overarching things. And that was the finding of the Court of Appeal. The other side then counterclaimed the appeal and took it all the way up to the Supreme Court. And the Supreme Court looked at all of these contract documents again, and they actually decided that there was this, it was a very clear obligation in Section 3.2.2.2 at the back of the contract that said, yeah, the design will ensure a 20 year design life for these foundations, and the contractor had failed to receive that, to achieve that, and therefore they were liable.

24:43 - So effectively, having this fit for purpose type obligation written way back in the contract. Because those bits earlier on in the contract where written has overarching reasonable skill and care provisions, they didn’t sort of trump, what was later on in the contract. So, the court sort of said that they should give full effect to all of these technical requirements in the contract. It didn’t matter that it was buried deep and there was other loads and loads of documents form in the contract. There was enough in there, it was that particular sentence was clear and it was a fit for purpose type thing.

25:20 - And therefore, the contractor that had done this design was indeed liable for the redoing of all of these foundations, to the tune of this 26 million euros. So therefore, this made everybody go back, that’s quite scary. So from this day forward, all professional consultants, whether they be designers of things, or archaeologists, architects, engineers, whatever, need to be careful that we’re really reviewing all of our contracts properly and making sure that we’re looking for an overarching reasonable skill and care provision. Because if that had been the case here, then reasonable skill and care, relying on a design standard, they’re told to rely on, that would probably have been enough of a defence. But for the fact that something else was buried in the contract more deeply that held them up to the higher fit for proper standard.

26:22 - So, the lessons that we need to learn from this sort of horror story are, that the standards of care expected from professionals is generally this reasonable skill and care, reasonably that performs the level reasonably expected of other qualified and competent people in your profession. But remember that if you sign a contract that says something else, you will be held to that other standard. And quite often it might be a higher standard. So you need to be careful of what other higher standard wording you may have in your contract. Innocent-looking wording can actually be fit for purpose. Quite often, I’m asked, people say, well, hang on a minute. It says that, as the consultant shall meet the specifications, well, of course the client wants the consultant to meet the specifications. Yes. However, it’s only subject to using reasonable skill and care, when not building a bridge or providing a kettle, we’re professionals providing advice. So it needs to be, yeah, we’ll meet the specifications clearly. That’s what we’re going to do. Subject to our obligations, being reasonable skill and care.

27:31 - And again, whether your overarching reasonable skill and care provision prevails depends on the way that the contract is drafted. Make sure that that is your overriding provision. And again, if there are numerous documents forming your contract, you need to do an overarching, check through everything and make sure that what you’ve got at the top of your contract, your reasonable skill and care is actually the overarching duty. Most forms of, most contract packs have an order of precedence of the documents in them. So generally, you’ll find that your terms or conditions do actually override what’s lower down in the specifications and all the other schedules.

28:12 - So if you’ve got something in a contract that says that, then you’re probably going to be okay, provided that you’ve got your overarching reasonable skill and care provision in that top document, in the contract pack. And then what you’d be wanting to look for, is just some wording like this that’s unambiguous and clear. So here we’ve got a lovely example, notwithstanding anything else to the contrary contained in or applied by this contract, the contractor’s obligation shall be limited to performing the services using the level of reasonable skill and care usually expected of an appropriate skilled and qualified contractor experienced in undertaking works similar to the works. If you have got that sitting at the top of your contract in the highest precedence document, then as professionals we can sort of, read the rest of the contract and go, oh, phew! Our PI, if we don’t perform to this standard our PI insurance is there to protect us, they’ll be happy with this wording and we can sort of be comfortable that we’re not inadvertently exposing ourselves to risk that we don’t want to. So anything again, lower down the contract.

29:22 - If you’ve got the upper bar, if you’ve got your scope of work, that then has all of us, the works will comply with X, Y, Z, the work will be fit for purpose. You can always add another sentence just for clarity at that start of those clauses, lower down the contract again that says, subject to, this is in clause one. Subject to clause one of the terms and conditions, we will design the work (indistinct). So that there for purposes of efforts provided that it’s caveated by this. So, that is the main practise of, what I wanted to say really.

30:00 - I was just literally focusing on this one point to, next time you get a contract from one of your clients over the next couple of weeks, just make sure that you have a quick look at it and make sure that you’re not falling foul of any sort of sneaky fit for purpose obligations. And then as a professional, archaeologist, architect, civil engineer, contractor, anybody providing services that we’re making sure that all of our contract obligations are limited to reasonable skill and care. I should take a sip of water now. - Thank you Rachel very much. Because we have a small number of people, I’m just gonna unmute everyone. And so if you have questions, you can ask them just to get us rolling. Rachel, is there any great difference between English law and Scot’s law on this point? Or are they very similar? - As far as I know, my studying has all been in English law, but I understand that, is it the same? And that in Scot’s law they have delict to know negligence, but I think it’s effectively the same.

31:15 - If you and your Scot’s law contract put in reasonable skill and care, and that’s, what’s expected of you. I think you’ll be okay. But if in doubt, look up a Scottish law book. Scottish law book. But as far as I know, it’s the same in most of our wind farm clients, contracts has gotten, to be honest, they tend to be under English law. But yeah, as I say, the term from negligence in Scot’s law is different, but the principles I believe are the same, but I’m a little bit wary to advise on that. - Understandable. And it looks like a couple of people have unmuted their mic. So if you want to ask your questions. - [Debra] Yes, my name is Debra. Thank you very much.

32:00 - That terrified me and at the same time lifted my spirits up because I now know what to look for in a contract. I have a very similar question as Kenneth, but on a European level, because I’m from a different country. And because I hope in the future, we can, work somewhere else outside Britain as well. Would that be also recognisable in contract with European company? - Again, it’s pretty similar, but you do have, in some other parts of Europe, they have more sort of strict liability provisions where you don’t necessarily get yourself protected. For example, in French law, I understand that there’s a pretty strict rule that if a building collapses or whatever, you’ve got a strict liability in there that everybody that was involved in design and building it takes a share of the responsibility.

33:03 - So even if you’ve tried to protect yourselves in your contract for reasonable skill and care, I believe that there are some sort of statutory sort of local laws that do have a more strict liability type of obligation on designers and professionals. So be careful and again and look at the local rules cause most other European countries are civil law countries as opposed to common law countries. So rather than it have developed through a case law, you’ve got more sort of formulate writing down all the rules. And you can go to, as I say, in French law, for example, you will have this sort of strict liability written into the law. So again, I would caution. - [Debra] Thank you very much. - Okay. - [Hester] How has to be prepare? I was just wondering if it came to it, it kind of who decides on fitness of purpose, cause especially someone like archaeology is a little bit difficult to know what fitness for purpose is.

34:15 - Not that you wanna go down that route anyway, but I’ve just sort of always curious really, because of the way, the nature of the work that we do, it’s not like we’re providing, it’s not easily defined in a sense. - Yeah. And I think that, to be honest, that’s probably in the archaeologists favour I would think. Because, I don’t really, I was trying to get a feel for this earlier on speaking with, Doug, as to what type of things in your contract, what type of, what is your scope? Cause when you’re providing advice, is it, what is the deliverables? You’re providing reports as to what’s on a particular site or whatever. (indistinct) You’re saying, I suppose it’d be something like, I guarantee there are no priceless Roman ruins in this bit of land, you can build a motorway. - [Hester] Well, I don’t even think it would necessarily be that.

35:10 - So it’s kind of interesting really, because I suppose, I think the problem we have is that we often get, you get a contract a hundred pages thick and the tender deadline is next week. Obviously you can look out for the key things, but in some senses, the risk of it, if it happens is the risk is catastrophic, but the risk of it happening is kind of small. If you know what I mean for some clauses because, fitness for purpose is largely decided by a third party. And once our reports or whatever you’ve written are accepted, then you would argue they’re fit for purpose because they’ve been accepted by the people that need to accept them. And then there is very little residual risk.

35:53 - But on the other hand, someone might argue that you said in your report there’s a low likelihood of archaeology on this site, and now we found a lot more. So I don’t know. - Yeah. I think that’s probably there’s other ways that we can sort of protect ourselves then with that type of thing. Because if it is that you’re assessing a level of risk, presumably in your, the way, you would find it is that, I’m advising you that there’s a certain sort of percentage risk of something being there. But then presumably you have sorts of fairly standard sort of caveats, it’s just based on, cause you can protect yourself by going, based on the information that I’ve got from my data search or whatever you’ve done and site surveys, et cetera. And then, I suppose that’s what you just put your reasonable skill and care based on that.

36:45 - You put the constraints of the work that you did and the limitations of doing it. And then also try to limit the extent to which your client can rely on it. Because it might be that it does get superseded by other things that happened later. And infact– - [Hester] I suppose that reliance thing about relying on something, cause obviously the state of knowledge changes and most reports that we write potentially out of date within six months. So if the client doesn’t use them in time, passes them on to somebody else, then they might not be valid for that use again kind of thing. - Yeah.

Now what I would say on that, 37:21 - it’s a sort of slightly different point, but very much related is make sure that if that is the case, I know you’ve got, you’re saying that when, you’re bidding is difficult to look at the contract. But the type of thing you want in your contract, there is actually sort of those sorts of constraints on your advice. And ideally you’d, the better off place, those sorts of constraints in the contract rather than in your report. So if you’ve got it in your contract, that the advice, if things become different in future or if the situation changes, you’re not liable for updating your advice, it’s based on a snapshot at that time, et cetera, and put those type of provisions in the scope of work. And if it’s clear in the scope of work in your contract, those limitations apply, write them in the report as well.

38:04 - And then, you’re very much sort of protected, but the boundaries of what your advice, is clear from as, and limited to reasonable skill and care. - [Hester] When we kind of often get tenders, the tenders are on the basis that we accept the contract. And when you kind of then issue a response to ask whether the contract can be changed, the answer is often no. So in a sense, what we’re doing is we’re assessing the risk of actually entering a contract which we perhaps think isn’t necessarily as good as it should be. - Yeah. I know. And it’s very difficult and they’ll say your mark then, and you’ll be thrown out if you’ve put any qualifications to the contract.

38:48 - So it’s always a sort of delicate path to try and sort of say, well, can we just talk to you because actually there’s some things here that, is in both parties interested to change and it would be better. So, if you can’t get it into the terms and conditions as such, that’s the part of the contract that’s more difficult to change, then you’ve got the, hopefully there’s more flexibility in what the actual scope of work is, I suppose. And you can try and get those protections in the scope of work. It’s not as ideal as being able to check for your nice overarching protection in your terms and conditions, but actually, within the constraints of the scope of work, that’s another place where you can put all of those limitations and caveats and things. But I know the process is difficult. That is my role to sort of deal with all of this and it’s a delicate path and it also depends how strong your position is compared to your client’s position in the negotiation, if there’s not many competitors, then that’s all well and good, but. - [Woman] Okay thanks. - Okay.

40:02 - Anybody else got any comments or questions? - [Kenneth] do you have a question? - [Kenneth] Yeah, just quickly. First of all, that last question. Asked this question about the thinking when the client presents you with their standard TNC and you just have to accept. Well, what I wanted to ask you, and thank you for answering that. I just had to slide perhaps more trivial question back to the case study you showed about the wind farm. Could the consultant not then, could their lawyers then not pass the legal liability on to the publishers of standard J101 when the standard was found to be at fault? - I think for, I would say if I was in that position, that would certainly be something that, one would be looking at you can’t really, it’s not really reasonable, is it to publish a design standard and then it has an error of that scale in it.

41:06 - I haven’t actually seen if there’s any sort of cases, if there’s been a follow up on that. But yes, one would think that there would be a case there. It wouldn’t be that, none of the parties would have a contract with the publisher of that design standard. So it would be like a sort of common law negligence type of claim because putting out a standard and, you have to take responsibility for that. And, as far as the publisher of a standard goes, it’s reasonably foreseeable where it’s people would rely on the advice in your standard.

41:39 - So there’d be like a torturous sorts of claim route there potentially. But, it’s whether it’s time, money, risk of not succeeding, but that puts people off doing these things. But, I certainly, it seems a little unfair, doesn’t it? But, it doesn’t seem like a fair outcome considering some of the factors if you look at it like that. - [Kenneth] Thank you. - [Kenneth] Rachel. So in archaeology we have not an official standard, but there is an organisation CIfA that has sort of standards and guidance that in many cases are quite vague that they publish there’s no, they are a chartered institute, but there’s no requirement to use any of their standards and guidances usually. Occasionally subcontracting down that might be from an archaeology organisation to another might say, you have to use it.

42:46 - Lots of people will put in their reports, we followed CIfA guidance, et cetera, on, survey or anything like that. Would those be something you can rely on if it’s say a third party organisation has put together some sort of survey and guidance, even though there’s not any legal backing to it? - I think that the point is, that it’s how you hold yourself and what you hold yourself out to be. It’s not that your clients also always gonna go and look for everyone’s degree certificates and chartered body certificates and things. But if you hold yourself out as being a professional person, (indistinct) that it’s going to come and do this work properly to the accepted professional standards, then that is the standard that that person is going to pass or fail against if it comes to it. So, the way that negligence type cases are assessed is effectively the way it’s by expert witnesses.

43:53 - So, you’re the claimant and the defence will both have their expert witnesses. And provided that the balance of that is yes, all of us in our profession, your expert witnesses come and say, well, within the standard expected in the profession, this person, yes, I would have done the same in the same situation based on the information I had at the time, et cetera, et cetera. And if the weighting of the balance of decision in the court would say, is that yes, in fact, that person did do what was reasonable and expected of a professional, whether they’ve got the actual certificate or not, but, what’s appropriate for somebody that holds themselves out as being sued to be qualified. That would be the standard that they’re judged against. So again, like I said, I’m a chartered civil engineer.

44:46 - If I go along and try and sort of advise somebody, as a chartered, oh, yes, I’ll come and design your bridge for you. And then I don’t do it. The fact that I turned out I’m actually a potential civil engineer or whatever, it doesn’t really matter because I’ve held myself out as being qualified to do that. And that is the standard that I’m going to be judged against. Or if my 17 year old son says, I’m a chartered civil engineer, I’m going to come and do your bridge for you, well, at the back like you shouldn’t have pretended you are because you’re not going to be judged as a 17 year old. If you’ve hold, held yourself out as being the person that’s quite, being qualified and capable at that level, that is a standard that you’re judged against. So that’s what really matters.

45:28 - So the fact that you have got a professional body, professional qualifications, et cetera, does have some meaning. And, that, if a case like this went to the court, that would be what the standard would be judged against. You’d get your professionals, people that are qualified and in that area and say, well, this is what’s expected of a properly qualified archaeologist, and that’s what somebody would be judged against if that makes sense. - [Kenneth] Thank you Rachel. Thank you Sinead for that question, because that’s pretty much what I was thinking when we do have CIfA as a professional association. It, in my opinion, it very weakly certifies people’s competence.

46:09 - It thinks it does, but it’s never been tested. There has never, well, it has been tested, but never tested to the level of going to a court case and them having to provide expert witnesses for one side or the other. So, yeah. - Mostly things don’t go to court cases, do they? But, it’s, even if we’re just settling something in a dispute with a client, and we’re sort of shaking hands over a settlement, you need, that is the sort of way that your arguments would go. - [Woman] Thank you. I partially asked because I’m on the committee for the film reviewing the standards. And if there’s anything we could bring into that review now that we’re kind of safeguarded for the fifth feature will be good to know.

46:53 - - Are there any other questions? - [Hester] I’m just gonna ask a question for (indistinct). Is there any kind of movement in fame to perhaps try and develop some models or sort of terms and conditions for the archaeologist can use? Or is that too much of a legal minefield? - [Kenneth] We talked about this at the webinar last week in the questions I asked Tariq man from Target about, where can we go to get standard TNCs? And he said, speak to your solicitor or buy the off the shelf ones from, for example, see the idea of standard TNCs for archaeological business is I think, as you say, the potential for a legal minefield and fame doesn’t really have an appetite to then being the ones that would have to carry the can for having produced such a thing. - [hester] Well, perhaps maybe some guidance on how you go about baking. So, not necessarily saying you do this, you do that. But I think a lot of this stuff is quite interesting and people probably sign on the dotted line without thinking about it too much and a bit more kind of, lots of guidance, but perhaps awareness of the sorts of pitfalls, maybe. - [Kenneth] Yes.

And I hope that’s what this series 48:31 - of webinars is. The first step towards this is making people aware of the pitfalls and the often traps, that they should avoid and giving them some idea about how you might, but, as you say, that people are still relatively under informed. There’s only a few of us here in this meeting. Hopefully more people will see the recording later and hopefully more people will look at the other webinars in this series, and we might pull something together at the very end. That’s a kind of a little document reviewing and pointing to things within the webinars that people can specifically pay attention to if they hadn’t been in here already.

49:15 - I think that’s, as far as we’ll be able to go in the short to medium term. - So presumably you’re working on clients’ terms and conditions most of the time, I would imagine. - [Kenneth] Almost always. - [Man] Sometimes I’d say for some of the smaller projects, when you have say someone who wants to do, build their own house or something like that, who is a private individual, they usually won’t have terms and conditions, but that is a very small portion of our members work. And it tends to be a very niche sort of bit of work. So for the most part it is working too with larger clients. - [Woman] Yeah. (indistinct) terms and conditions.

50:17 - - So if we don’t have any more questions, I think we can draw this to a close. .