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Short
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Form 9
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ACE Short Form
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Ag reernent
2002
(revised 2004)
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For use with

a concise brief
 About this agreement
The ACE Short Form is intended for use with a concise brief.
The sorts of projects or tasks for which it has been prepared
are those with a single activity or single activity task such as
report and advisory work, a feasibility study or detailed design
only. It is not suitable for use where the Consultant is
appointed to advise on matters relating to asbestos or the

en
prevention or mitigation of the effects of acts of terrorism,
nor is it suitable for use where collateral warranties are
required. It has been designed to be signed under hand only.
This agreement should be used in conjunction with the
guidance document issued with this publication.
This edition revised February 2004

About ACE

A
-
im
ACE is the business association for consultancy and engineering
and represents over 750 companies, which employ over 35,000
- staff working in the built and natural environment. ACE member
E firms regularly win awards for the excellence of their work and are
generally regarded as some of the most innovative consultancy and engineering
companies in the world.

ACE lobbies the UK Parliaments and national assemblies and the European
ec
Parliament and maintains regular contact with ministers and officials in order to
influence legislation and promote the expertise of its members. ACE is active in
the key UK industry organisations and is also the British member both of the
European Federation of Engineering Consultancy Associations (EFCA) and
FIDIC, the International Federation of Consulting Engineers.

ACE Agreements are the industry standard contract documents for consultancy
appointments. ACE membership demonstrates that a company has the
experience and skills necessary to provide a high-quality service to clients. ACE'S
code of conduct sets high standards and the distinctive ACE logo displayed on
members' signboards is a recognised mark of quality and excellence

To promote best practice and better ways of working in the industry, ACE also
publishes a range of briefing notes and guidance documentation for both clients
Sp

and consultants. Details of the information available is listed on the ACE website
at www.acenet.co.uk

For further information contact

ACE, Alliance House, 12Caxton Street, London SW1 H OQL
Tel: 020 7222 6557, Fax: 020 7222 0750
email: [email protected], website: www.acenet.co.uk

0 The ACE. No part of this Agreement may be copied or stored electronically without the
express permission in writing of the ACE. The ACE can accept no liability in respect of any use
to which the Agreement may be put.
 ACE Short Form Agreement 2002

for use with a concise brief

A THE AGREEMENT, THE PARTIES AND APPOINTMENT OF THE CONSULTANT FOR

THE SERVICES

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A1 This Agreement is between a client and a consultant (respectively "the Client" and "the Consultant")
whose details are set out in section 1 of the Schedule attached hereto ("the Schedule") and is made
on the date set out in section 1 of the Schedule.

A2 The Client appoints the Consultant to provide the services described in section 2 of the Schedule
("the Services").

A3 This Agreement comprises these terms and the Schedule.

B OBLIGATIONS OF THE CONSULTANT TO THE CLIENT

6 1 The Consultant shall exercise reasonable skill and care in the performance of the Services.

C
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8 2 Subject to matters beyond the Consultant's reasonable control the Consultant shall use reasonable
endeavours to perform the Services in accordance with the programme if any set out in section 3 of
the Schedule and any changes thereto agreed with the Consultant from time to time.

OBLIGATIONS OF THE CLIENT TO THE CONSULTANT

C1 The Client shall pay the Consultant for the performance of the Services the fees and expenses set
out in section 4 of the Schedule.

C 2 The Client shall supply to the Consultant in a timely fashion without charge all necessary and relevant
information in the possession of the Client or any of the Client's agents consultants or contractors
and any necessary instructions decisions consents or approvals. The Consultant shall not be liable
for the consequences of any delays to the Services arising from any failure by the Client to comply
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with this obligation.

C 3 If the Consultant has to carry out additional work and/or suffers delay or disruption in the performance
of the Services for reasons beyond the Consultant's reasonable control the Client shall make an
additional payment to the Consultant in respect of the additional work carried out and the additional
resources employed and/or the delay or disruption suffered. The additional payment shall be
calculated on the basis set out in section 4 of the Schedule. The Consultant shall where practicable
and if so requested by the Client give an initial estimate of the additional payment likely to be incurred.

C 4 Payment due to the Consultant under this Agreement shall become due for payment on submission
of the Consultant's invoice therefor and the final date for payment shall be 28 days thereafter.
Interest shall be added to all amounts remaining unpaid thereafter and shall be calculated in
accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and at the relevant
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reference rate plus the statutory rate of interest.

C 5 The Client shall not later than five days after the date on which payment becomes due give a notice
specifying the amount (if any) of the payment made or proposed to be made and the basis on which
that amount was calculated.

C 6 The Client may not withhold any payment after the final date for payment of any sum due under this
Agreement unless the Client gives not later than seven days before such final date a notice
specifying the amount proposed to be withheld and the ground for withholding payment or if there is
more than one ground each ground and the amount attributable to it.

C 7 All sums due under this Agreement are exclusive of value added tax the amount of which shall be
paid by the Client to the Consultant at the rate and in the manner prescribed by law.
 ACE Short Form Agreement 2002

D TERM1NATION
D1 The Client may terminate the appointment of the Consultant in the event of a breach of this
Agreement by the Consultant or in the event of the insolvency of the Consultant by two weeks'
notice in respect of all of the Services.

D2 The Consultant may terminate the appointment of the Consultant in the event of a breach of this
Agreement by the Client or in the event of the insolvency of the Client by two weeks' notice.

D3 In this Agreement "insolvency" shall mean either party becoming bankrupt going into liquidation

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(either voluntary or compulsory except as part of a bona fide scheme of reconstruction or
amalgamation) being dissolved compounding with its creditors or having a receiver administrative
receiver or administrator appointed of the whole or part of its assets.

D4 If circumstances arise for which the Consultant is not responsible and which the Consultant
considers make it irresponsible for the Consultant to perform all or any part of the Services the
Consultant shall be entitled to terminate the appointment by two weeks' notice.

D5 In the event of any termination the Client shall pay the Consultant a fair and reasonable amount on
account of the fees due under C1 commensurate with the Services performed to the date of such
termination and any outstanding expenses.

D6 Termination of the Consultant's appointment under this Agreement shall not prejudice or affect the
accrued rights or claims of either party.

E
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COPY RIGHT LICENCE PUBLIClTY AND CON FIDENT1ALlTY
E l The copyright in all drawings and other documents (including material in electronic form) provided to
the Client by the Consultant shall remain vested in the Consultant but the Client shall have a licence
to copy and use such drawings and other documents for the purposes for which they were provided.
In the event of the Client being in default of payment of any fees or other amounts due under this
Agreement, the Consultant may revoke the licence herein granted on giving seven days' notice. The
Consultant shall not be liable for the use by any person of any such drawings or other documents for
any purpose other than that for which the same were provided by the Consultant.

E2 Neither party shall disclose to any other person any private or confidential information concerning the
business of the other party unless so authorised by the other party.
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F LIABILITY AND INSURANCE
F1 Notwithstanding anything to the contrary contained in this Agreement the total liability of the
Consultant under or in connection with this Agreement whether in contract or in tort or in negligence
or for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall
not exceed the sum set out in section 5 of the Schedule.

F2 Subject to F1 but notwithstanding otherwise anything to the contrary contained in this Agreement
such liability of the Consultant for any claim or claims shall be further limited to such sum as it would
be just and equitable for the Consultant to pay having regard to the extent of the Consultant's
responsibility for the loss or damage suffered as a result of the occurrence or series of occurrences
in question ("the loss and damage") and on the assumptions that:
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(i) all other consultants and all contractors and all sub-contractors appointed in connection with the
project in question shall have provided contractual undertakings on terms no less onerous than
those set out in B1 to the Client in respect of the carrying out of their obligations;

(ii) there are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions
between the Client and any other party referred to in this clause and any such other party who is
responsible to any extent for the loss'and damage is contractually liable to the Client for the loss
and damage; and

(iii) all such other consultants and all such contractors and sub-contractors have paid to the Client
such proportion of the loss and damage which it would be just and equitable for them to pay having
regard to the extent of their responsibility for the loss and damage.

0
 ACE Short Form Agreement 2002

F3 No action or proceedings under or in respect of this Agreement whether in contract or in tort or in

negligence or for breach of statutory duty or otherwise shall be commenced against the Consultant
after the expiry of the period stated in section 5 of the Schedule.

F4 The Consultant shall maintain professional indemnity insurance in an amount sufficient to cover the
Consultant's liabilities hereunder (provided that the Consultant shall not be obliged to maintain
insurance in respect of pollution and contamination on the basis of any one occurrence or series of
occurrences) from the date hereof until the expiry of the period of years stated in section 5 of the
Schedule (or termination of this Agreement if earlier) and shall maintain public liability insurance
provided always in either case that such insurance is available at commercially reasonable rates and

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subject to all exceptions, exclusions and limitation to the scope of cover that are commonly included
in such insurance at the time the insurance is taken out or renewed as the case may be.

F5 Save in respect of death or personal injury, the Client shall look only to the Consultant (and not to
any individual) for redress if the Client considers that there has been any breach of this Agreement.
The Client agrees not to pursue any claims in contract, tort or statute (including negligence) against
any individual as a result of carrying out its obligations under or in connection with this Agreement at
any time whether named expressly in this Agreement or not.

F6 In this Agreement "individual" shall mean any employee or member of the Consultant. Any such
employee or member includes any officer or director of a company or a member of a limited liability
partnership.

G
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DISPUTES AND DIFFERENCES
G1 The parties shall attempt in good faith to settle any dispute by mediation.

G 2 Where this Agreement is a construction contract within the meaning of the Housing Grants,
Construction and Regeneration Act 1996 either party may refer any dispute arising under this
Agreement to adjudication in accordance with the Construction Industry Council Model Adjudication
Procedure.

H GENERAL
H1 Neither party may assign or transfer any benefit or obligation under this Agreement without the prior
written consent of the other party such consent not to be unreasonably withheld or delayed.
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H2 Save in respect of the benefits or rights conferred on individuals pursuant to F5 nothing in this
Agreement confers or purports to confer on any third party any benefit or any right to enforce any
term of this Agreement under the Contracts (Rights of Third Parties) Act 1999.

H3 This Agreement shall be governed by and construed in all respects in accordance with the laws of
the country set out in section 6 of the Schedule and each party hereby submits to the non-exclusive
jurisdiction of the courts of the said country.

I NOTICES
I1 Any notice under this Agreement shall be in writing and given by sending the same by fax or first
class letter to the Client or the Consultant at the address shown in section 1 of the Schedule. For
the avoidance of doubt any notice sent by e-mail shall not be an effective notice under this
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Agreement. Notices shall take effect when they have been received by the Client or the Consultant
as the case may be.

Signed by or on behalf of
the Client:

Signed by or on behalf of
the Consultant:
 ACE Short Form Agreement 2002

Schedule
Section 1 - Details of the Parties and date of this Agreement
1 The Client is

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of

2 The Consultan is

of

3 The date of this Agreement is the day of 20

or the date upon which the Consultant first commenced performance of the Services whichever is
the earlier.

Section 2

1
im - The Services
The Services to be performed under this Agreement are:
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The Consultant is not responsible under this Agreement or otherwise (i) for advising on matters which
wholly, partly, directly or indirectly arise out of or result from asbestos (including without limitation the
costs of testing for, monitoring, abatement, mitigation, removal, remediation or disposal of any asbestos or
product or waste that contained asbestos) or (ii) for designing or advising on or otherwise taking
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measures to prevent or mitigate the effect of any act of terrorism or any action that may be taken in
controlling, preventing, suppressing or in any way relating to an act of terrorism.’

Note:
1 The Consultant shall not provide site staff nor attend site to monitor any works unless this is
specifically stated in this section.

2 Where site staff are to be provided the Client shall be responsible for the cost and provision of such
local office accommodation office equipment protective clothing and transport on site as shall .
reasonably be required for use by the Consultant’s site staff and the running costs thereof.

’The Short Form is not appropriate for use where the Consultant has any duties to advise in relation to asbestos matters
or on the effects of acts of terrorism - separate advice should be taken - see Guidance.

0
 ACE Short Form Agreement 2002

3 Where site staff are provided and/or the Consultant attends site during construction the Consultant
shall monitor that the construction works are being executed generally in accordance with the
contract documents and good engineering practice.

Section 3 - The Programme

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1 The programme if any for the performance of the Services agreed with the Consultant is described
below or attached hereto.

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Section 4 - Payment of fees and expenses
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1 Payment of fees and expenses for the Services shall be
1.1
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ACE Short Form Agreement 2002

1.2

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2 The fees and expenses payable hereunder shall be paid by instalments and the intervals for payment
shall be
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3 Where time-based fees are to be paid they shall be at the rates set out herein and calculated by
multiplying the hourly or daily rates applicable to the persons concerned by the number of hours or
days (as the case may be) spent by such persons in performing the Services including time spent
travelling in connection with such Services.
 ACE Short Form Agreement 2002

4 Payment for the following expenses:

printing reproduction and purchase of documents maps records and photographs
courier charges
travelling hotel expenses and subsistence
any other expense listed hereunder

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shall be paid at cost.

5 The basis of payment for the calculation of additional payment under C 3 shall be

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Section 5 - Limitation of liability and insurance
1 The total liability of the Consultant shall be S

2 The period of the Consultant's liability is from the date hereof to years after completion of
the Services (or termination of this Agreement if earlier) or such earlier date as may be prescribed by
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law.

Section 6 - Jurisdiction
1 England/Scotland2

* Delete as applicable
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E
For further information contact
Association of Consulting Engineers
Alliance House
1 2 Caxton Street
London SW1 H OQL
Tel: 0 2 0 7222 6557
Fax: 0 2 0 7222 0 7 5 0
Email: [email protected]
Website: www.acenet.co.uk
 en
ACE Short Form
im
Agreement
2002 m
(revised 2004)
L
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Sp

For use with

a concise brief CD
~

About this agreement

The ACE Short Form is intended for use with a concise brief.
The sorts of projects or tasks for which it has been prepared
are those with a single activity or single activity task such as
report and advisory work, a feasibility study or detailed design
only. It is not suitable for use where the Consultant is
appointed to advise on matters relating to asbestos or the

en
prevention or mitigation of the effect of acts of terrorism nor
is it suitable for use where collateral warranties are required. It
has been designed to be signed under hand only. This
agreement should be used in conjunction with the guidance
document issued with this publication.
This edition revised February 2004

About ACE

Qe -
im
ACE is the business association for consultancy and engineering
and represents over 750 companies, which employ over 35,000
staff working in the built and natural environment. ACE member
E firms regularly win awards for the excellence of their work and are
generally regarded as some of the most innovative consultancy and engineering
companies in the world.

ACE lobbies the UK Parliaments and national assemblies and the European
Parliament and maintains regular contact with ministers and officials in order to
ec
influence legislation and promote the expertise of its members. ACE is active in
the key UK industry organisations and is also the British member both of the
European Federation of Engineering Consultancy Associations (EFCA) and
FIDIC, the International Federation of Consulting Engineers.

ACE Agreements are the industry standard contract documents for consultancy
appointments. ACE membership demonstrates that a company has the
experience and skills necessary to provide a high-quality service to clients. ACE'S
code of conduct sets high standards and the distinctive ACE logo displayed on
members' signboards is a recognised mark of quality and excellence

To promote best practice and better ways of working in the industry, ACE also
publishes a range of briefing notes and guidance documentation for both clients
Sp

and consultants. Details of the information available is listed on the ACE website
at www.acenet.co.uk

For further information contact

ACE, Alliance House, 12Caxton Street, London SW1 H OQL
Tel: 020 7222 6557, Fax: 020 7222 0750
email: [email protected], website: www.acenet.co.uk

0 The ACE. No part of this Agreement may be copied or stored electronically without the
express permission in writing of the ACE. The ACE can accept no liability in respect of any use
to which the Agreement may be put.
 ACE Short Form Agreement 2002 - Guidance

tor use with a concise briet

General
1 The ACE Short Form is intended for use with a concise brief. The sorts of projects or tasks for which
it has been prepared are those with a single activity or single activity task such as report and
advisory work, a feasibility study or detailed design only. It is not suitable for use where the
Consultant is appointed to advise on matters relating to asbestos or the prevention or mitigation of

en
the effect of acts of terrorism nor is it suitable for use where collateral warranties are required. It has
been designed to be signed under hand only.

2 The Schedule attached is an integral part of the Terms and must be completed fully to create a
complete agreement for a specific commission.

The Parties
3 The details of the Client and the Consultant must be set out in section 1 of the Schedule as this
provides the description of both for the purposes of the Terms.

The Date
4 The date of the Agreement is also to be set out in section 1 of the Schedule and paragraph 3 of that
section provides that the Agreement is made as at that date or the date the Consultant first

The Services
5

6
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commenced performance of the Services.

The Services are to be set out in section 2 of the Schedule. Unlike other ACE Agreements no
standard ''normal'' services are set out. The Consultant therefore needs to provide full and accurate
details of all the services to be provided for the particular commission.

There is an express statement in section 2 that the Consultant is not responsible for duties in relation
to asbestos nor for designing or advising on measures to prevent or mitigate the effects of acts of
terrorism. If such duties are to be undertaken they should be the subject of a separate appointment
and the Consultant and the Client should discuss and agree appropriate limitations of liability which
reflect the very limited basis if any of professional indemnity insurance for claims arising out of or in
connection with asbestos and the absence of any professional indemnity insurance for the effects of
any act of terrorism (the definition of which can vary). The Consultant should take legal advice as to
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the appropriate terms and limitations to be used in these circumstances.

7 There are no "additional services" as such in the Terms. If additional services could be provided the
Terms will need to be amended to refer to them and provide a basis for payment - see below.

8 Site visits: it is not envisaged that site staff or site inspection will be provided under these Terms.
Thus, section 2 - the Services - states that no site staff will be provided, nor will the Consultant
attend site unless this is specifically stated in that section. If site staff or inspection are to be
provided, this should be set out expressly in section 2 of the Schedule. Notes 2 and 3 in section 2
set out the basis on which site staff will be provided if this applies. In relation to site supervision and
in line with the other ACE Agreements, it is stated that the Consultant shall monitor that the
construction works are being executed generally in accordance with the contract documents and
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good engineering practice.

The Programme
9 If the Client and Consultant have agreed a programme for the performance of the Services this
should be attached to section 3 of the Schedule. It is also envisaged that any changes to that
programme will be agreed between the parties.

Payment of fees and expenses

10 Fees and expenses are to be set out in section 4 of the Schedule.

11 Spaces are provided in paragraphs 1 to 5 of section 4 of the Schedule to give precise details of the
arrangements to apply. Particular care must be taken to transfer to the relevant paragraph of section
4 of Schedule 1 the appropriate wording from paragraphs 17 to 26 of this Guidance. The wording in
these paragraphs and in C 4 to C 6 should not be altered so as to ensure that the arrangements are
legally valid and comply with the requirements of the Housing Grants, Construction and
 !
ACE Short Form Agreement 2002 - Guidance

Regeneration Act 1996 ("the Act") as described below. Detkir's of the fee basis are to go in
paragraph 1 and details about the instalment intervals and how sums due at those intenials are to be
calculated are to go in paragraph 2. Payment by instalments for any fee basis is required by the Act
for any commission over 45 days. Some commissions under these Terms may not be "construction
contracts" for the purposes of the Act, but the payment provisions of the Act will apply because they
are incorporated into the Terms specifically.

12 These details are essential if the payment provisions of the Scheme for construction contracts, which
are unsuitable for Consultants, are not to apply.

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13 The Act also provides that contracts must provide a date when payments become due and a final
date for payment. C 4 provides that payment becomes due on the submission of the Consultant's
invoice and that the final date for payment is 28 days thereafter. The provisions required by the Act in
relation to notices of payment or where any payment is going to be withheld are in C 5 and C6.

14 Payment for Services may be as time based fees or lump sum and the chosen basis is to be set out
in paragraph 1 (see below). \ e

15 It is essential that paragraph 5 is completed as it is the basis for additional payment under C3. If time
based fees are to be the basis this needs to be stated and the relevant rates set out unless time
based fees are also the basis for the Services, in which case reference can be made to paragraph 1.

16 If any basis other than those described in this Guidance is chosen, for example a fee percentage
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basis linked to Project Cost or Works Cost, the Consultant should take advice on how to comply
with the Act and as to the alterations required to the Terms. See also Guidance to ACE Agreements
A(1) and A(2) and B(1) and B(2) (revised 2004).

Time based fees

17 If the fee is to be on a time basis, paragraph 1.1 should be completed as follows:

1.1 Payment of fees for the Services shall be on a time basis as set out in paragraph 1.2.

18 The rates may be specified as stated hourly sums for listed levels or grades of staff. If so a suitable
form of words for paragraph 1.2 is as follows:
I
I 1.2 The rates for time based fees where applicable shall be.
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I Rate per hour
Level/Grade (eg Principal)
l

Level/Grade (eg Senior Engineer)

etc

The Consultant should insert rates for the staff to be used.

19 If time based fees are to be revised annually, there should be added to paragraph 1.2 words such as:
Sp

Rates for time based fees set out above shall remain fixed for one year from the date hereof after
which they shall be revised to reflect the annual increase in salary for the staff in question.

20 Instalments: The intervals for the payment of time based fees and the date from which they start (or
the interval dates) should be agreed and recorded in paragraph 2. This will apply to the Services if
on a time basis but has to be completed in any event for additional payment under C3. The intervals
should be given as monthly/quarterly (or as appropriate) from the date hereof.

Lump sum fees

21 The fee for the Normal Services may be agreed as a single lump sum which should be set out in
paragraph 1.1. A suitable form of words is:

1.1 Payment of fees for the Services shall be a lump sum of L ( )

22 Alternatively, the fee for the Services may be agreed as the total of lump sums for various stages.
 ACE Short Form Agreement 2002.- Guidance

1 -

This should be set out in paragraph 1.l.

A suitable form of words is:

1. I Payment of fees for the Services shall be the total of the following lump sums

L ( ) on completion of the I I stage

L ( ) on completion of the I I stage

Note: the description of the stages needs to be considered as there is no definition of ’‘stages’’ in
the Terms.

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23 Instalments: the intervals for payment by instalments for lump sum fees and the date from which they
start (or interval dates) should be completed and recorded in paragraph 2 in order to comply with the
Act. The amount also needs to be specified or must be capable of calculation and set out in
paragraph 2.

24 Where the lump sum fee is a single sum, paragraph 2 could be completed as follows:

In equal monthly/quarterly instalments from the date hereof.

or

Amount
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25 Where the lump sum fee is to be the total of lump sums for the various stages, the amount and the
fact that it is to be invoiced on completion of each stage should be stated: for example paragraph 2
could be completed as follows:

L(
) to be invoiced on completion of the I I stage.
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26 If instalments of the lump sum are to be paid during a stage, this will need to be stated: for example
paragraph 2 could be completed as follows:

L ( to be invoiced in equal monthlylquarterly instalments from the commencement

of the [ I stage to completion of the [ I stage.

Note: the description of the stages needs to be considered as there is no definition of l’stagesll in
the Terms.

Expenses
27 The arrangement for payment of expenses should be specified in paragraphs 1 and 2. Paragraph 1
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should state whether or not the fee is inclusive of expenses. If expenses are not included in the fee,
paragraph 2 should set out in addition how they are to be recovered, for example by instalments due
at monthly or quarterly intervals. This is needed to provide an interval as required by the Act.

28 Paragraph 4 provides that the expenses set out there are to be paid at cost. Space is provided for
further expenses to be added. If this is not the correct basis, paragraph 4 should be amended. If
expenses are included in the fee paragraph 4 should be deleted.

Interest
29 Interest has been provided in C4. It is to be calculated in accordance with the Late Payment of
Commercial Debts (Interest) Act 1998. This provides a “reference rate” for the six month period in
which the debt becomes late to which is added the statutory rate of interest (currently 8%).
 I

ACE Short Form Agreement 2002 - Guidance

, Liability and Insurance

, 3 0 No provision has been made in the Terms for any limitations or exclusions of liability for claims arising
out of or in connection with asbestos nor designing or advising on measures to prevent or mitigate
I the effects of acts of terrorism as the Terms expressly exclude any duties in relation to these matters
I
- see paragraph 6.

31 No distinction is made in the Terms between claims for pollution and contamination and other claims.
If such a distinction is to be drawn and different levels of liability agreed, the Consultant should take
advice as to the amendments needed to the Terms. The limits and duration of liability, the levels and
duration of professional indemnity insurance and public liability insurance cover for each commission

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under these Terms should be discussed between the Client and the Consultant prior to completing
section 5 of the Schedule.

32 F1 is drafted on the basis that a total limit of liability will be agreed with the Client for all claims and a
total monetary amount will therefore be set out in paragraph 1 of section 5.

33 Any limitation of liability clause must be reasonable if it is to be effective. When considering the
amount to be agreed for the Consultant's total liability, this should be appropriate for the commission
and risks in question and not necessarily be the amount of the Consultant's professional indemnity
insurance cover.

3 4 F2 differs from the traditional joint and several formula and provides for net contribution, ie that the
Consultant will be liable for only his fair share of any loss, taking into account his share of the
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responsibility. This clause has been revised to reflect the House of Lord's decision in the Co-
operative Retail Services case. (For further details of/developments concerning this case see
www.acenet.co.uk legal section.)

35 Paragraph 2 of section 5 must record the period of the Consultant's liability for claims. When
considering the number of years to be inserted in this paragraph, it must be remembered that, in
England, by statute the time within which claims can be brought in respect of contracts signed under
hand (as these Terms are to be) is six years from the date of breach. In Scotland the number of years
for claims is five with a long stop of 20 years. Any limitation on the time within which claims can be
brought is subject to the reasonableness test and claims in tort for latent defects, for example, can
be brought later than six years (or five years in Scotland) from the date of the breach. A limitation
somewhere between six and ten years may be considered reasonable, depending on the
commission.
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36 F4 provides that the Consultant will maintain professional indemnity insurance in an amount sufficient
to cover his liabilities. It is not necessary therefore to agree an amount of professional indemnity
insurance to be maintained. The period for which it is to be maintained is the same length as the
period of liability for claims set out in paragraph 2 of section 5. The Client may well, however, seek
evidence of insurance and the amount the Consultant carries should be at least equal to the amount
in paragraph 1 of section 5. F4 also provides that the Consultant will maintain public liability
insurance.

37 Agreeing to maintain professional indemnity insurance in a certain sum is not the same as agreeing
to limit the Consultant's liability to that amount. That must be agreed separately.

3 8 F5 aims to make it difficult (hopefully impossible) for Clients, having agreed this, to contend that an
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employee of the Consultant owes him a duty in tort. For further details and specific guidance on this
clause see www.acenet.co.uk legal section.

General
3 9 The Agreement is to be subject to the law of either England or Scotland. Section 6 must record
which country's laws are applicable.

Signing the terms

40 Where these Terms are subject to English law, all that is needed is for someone with the necessary
authority to sign on behalf of the Client and likewise for the Consultant as indicated on page 5. This
is also sufficient where the Terms are subject to Scottish law but, in addition, each section of the
Schedule must be signed by both signatories.
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For further information contact

Association of Consulting Engineers
Alliance House
12 Caxton Street
London SW1 H OQL
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