Back to Basics

Professional Indemnity
Construction and Engineering

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Contents

Introduction
Part A
Understanding construction contracts and claims

Construction contracts 5
Completion of construction works 7
Claims in construction projects 8
Part B
Key legal principles behind professional indemnity
claims in construction projects

Contract vs. common law 11

Contractual “standard of care” ... and what it
actually means 14
Transferring obligations in construction
projects 15
What you need to establish to bring a claim 16
Summary of main dispute resolution forums 17
Insurance 19
Experts 20
Reduce the risk 21
Introduction

Welcome to the Back to “‘One of the best firms out

Basics booklet on there’... ‘a real pleasure to
construction and work with’ according to
clients, who praise its
engineering professional ‘first-rate services’ and its
indemnity issues. ‘perfect combination of
The aim of the booklet is to assist intelligence, tactical
those who are relatively new to prowess and personality’.”
construction and engineering
professional indemnity, or for those Legal 500 2018
who would benefit from a quick
reminder of some key points.
“Incredible. In terms of
I hope you will find the material reporting, they’re well
Hannah Cane useful. Of course, please do not
Partner hesitate to contact me, or the rest of aware of what the market
the team, should you have any requires. They’re
questions. commercial, straightforward
and can see the bigger
picture. They know what
direction to steer the
claimant in.”
Chambers and Partners UK
Guide 2018

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Part A
Understanding
construction contracts
and claims

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Construction contracts

Parties The most common procurement methods are Traditional

and Design & Build. Examples of how these types of
The construction and engineering sector is wide. It projects would work are set out below (Contracts shown
covers the construction of everything from schools to with blue arrows; collateral warranties shown with grey
offshore oil platforms. The principles of construction and arrows):
engineering contracts are very similar, whatever you are
building, but the terminology used can be very different. Traditional
We have focussed on the design and construction of
buildings in order to keep things simple. Funder

Main Parties
The main participants in a construction project are: Employer/
Developer/Client
• Employer / Developer / Client: the person who wants
a project built
Main Contractor Professional
• Funder: financing the project
Consultants
• Main Contractor: overall responsibility for building and
can have design responsibility if it is a Design & Build
contract Sub-Contractors
• Sub-Contractors: employed by the Main Contractor to
carry out specific parts of the works
• Professional Consultants: such as Architects, Design and Build
Engineers, Surveyors, Specialist Consultants etc.
employed by either the Employer or the Main
Contractor depending on the procurement method, Funder
and
• Validation / Checking Engineer: employed directly by
either the Employer or the Main Contractor to check Employer/
Developer/Client
and report on the Sub-Contractor’s work.

Contracts Main Contractor

Procurement Methods
How these parties fit together contractually depends on Professional
Sub-Contractors
the procurement method used, for example: Consultants
• Traditional
• CDP (Contractor’s Designed (or Design) Portion)
• Design & Build
• Management contracting
• Construction management
• EPC (Engineer, Procure and Construct)
• DBO (Design, Build and Operate)
• Multi-contracting, and
• Bespoke.

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Standard Form Contracts Collateral Warranties
Contracts in the construction sector are usually based Parties often also use collateral warranties.
upon standard form contracts (although sometimes they
These create a contractual link between participants in a
are bespoke contracts drafted from scratch by lawyers).
project that are not directly connected by the main
Standard form contracts are published and maintained by
construction contracts on project. (See the grey arrows
a range of construction and engineering industry bodies.
on the diagrams on page 5).
Many of the standard form contracts are published as a
suite of contracts covering the different procurement The Contracts (Rights of Third Parties) Act 1999 can be
methods and contractual links in a construction project. used to achieve the same result without the need for
The choice of standard form is normally based upon the executing additional contracts.
sector. For buildings, the most common set of contracts
Collateral warranties (or third party rights) are often relied
are the JCT contracts.
upon when one party in the construction project
Examples of some commonly used standard form becomes insolvent or by parties who are not part of the
contracts are: construction project (e.g. a tenant or subsequent
purchaser).
Construction
• JCT, NEC and GC/Works. If there is no contractual link between a party that has
suffered a loss and the person that it wants to make a
Engineering
claim against then the party with the claim has to rely on
• FIDIC, ICC and IChemE. rights in tort (negligence) or statutory rights.
Professional Consultants
Collateral warranties (or third party rights) normally create
• RIBA, RICS, NEC and ACE. obligations up the contractual chain only and not down it.
For example, a Sub-Contractor would agree with the
Employer that it will carry out the works with reasonable
skill and care but the Employer would not agree to pay
the Sub-Contractor’s invoices should the Main Contractor
fail to do so.

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Completion of construction
works

Key concepts Notice of Completion of Making Good

We have set out the terminology used in construction • Issued once defects have been rectified at the end of
contracts in relation to buildings. Process plants have the Rectification Period.
more complicated structures because of the need to • Confirms that any defects which the Employer
commission and test the plant. required the Contractor to rectify have been rectified.
Patent Defects
Practical Completion
• Defects which can be detected at Practical
• There is no precise legal definition but it is sometimes Completion.
defined in the contract by the parties. • Works should be free from patent defects at Practical
• Generally seen as when the works are complete apart Completion.
from minor works which do not affect the safe use of
the building (“snagging” items), or latent defects (which Latent Defects
are discovered later). • Defects which cannot be detected at Practical
• Often referred to as ‘PC’. Completion, even upon reasonable inspection.
Practical Completion Statement
• Often has far reaching consequences, for example in
relation to liquidated damages, Contractor’s liability for
patent defects, retention, risk for the works and
possession of the building.
• Also referred to as a Practical Completion or PC
Certificate.

Rectification Period
• Period following Practical Completion (normally 6 or 12
months; often 24 months in engineering contracts).
• Contractor normally must return to site to remedy any
defects which appear during this period and / or has
the right to return to site to remedy defects which
appear.
• Sometimes called the Defects Notification Period,
Defects Correction Period or Defects Liability Period.
• Note that the Contractor’s liability for defects may not
stop at the end of this period. It depends what the
contract says.

But … there are always exceptions to the rules!

Parties may agree otherwise in their contract or
approach matters differently in practice.

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Claims in construction projects

Types of claims

Loss and
expense

Death or
personal injury Business
interruption

Bonds and
guarantees
Intellectual
property Acceleration Breach of Variations
warranty

Typical Claims
Delay,
Breach of disruption and in a Physical
damage to
planning or compensation Construction the works
events
other
regulatory
Project Extensions
of time
requirement

Fitness for Defects (design/

purpose workmanship)

Employer’s
Liquidated liability
damages Termination

Damage to
third party Final account
property

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Who might have a claim against whom?
The table below sets out some examples of the types of claims which might be
experienced in a traditional building contract, with a Contractor’s Designed Portion.

Employer Main Contractor Sub-Contractor Professional Consultant

Main Contractor might claim against Employer for: Sub-Contractor might claim against Employer for: Professional Consultant might claim against
• Unpaid sums • Unpaid sums Employer for:
• Variations • Variations • Unpaid fees, and / or
• Loss & Expense • Loss & Expense, and / or • Termination.
Employer

• Delays, Extensions of Time and Compensation • Delays…

Events …where the Main Contractor is insolvent.
• Acceleration, and / or
• Termination.

Employer might claim against Main Contractor for: Sub-Contractor might claim against Main Professional Consultant might claim against
Main Contractor

• Defective design Contractor for: Main Contractor for:

• Workmanship defects • Unpaid sums • Contribution for defective design.
• Delay (general or liquidated damages), and / or • Variations
• Termination. • Loss & Expense
• Delays, Extensions of Time and Compensation
Events
• Acceleration, and / or
• Termination.

Employer might claim against Sub-Contractor for: Main Contractor might claim against Sub- Professional Consultant might claim against
Contractor

• Defective design Contractor for: Sub-Contractor for:

• Workmanship defects, and / or • Any sums claimed against it by Employer, and / • Contribution for defective design.
• Delay (general or liquidated damages)… or
Sub-

…where the Main Contractor is insolvent / not • Termination.

insured.

Employer might claim against Professional Main Contractor might claim against Professional Sub-Contractor might claim against Professional
Consultant for: Consultant for: Consultant for:
• Defective design • Defective design, and / or • Contribution for defective design.
• Indemnities for breaches eg in relation to Final • Failure to certify.
Professional

Account
Consultant

• Inadequate supervision
• Incorrect payment documents
• Incorrect certification
• Failure to warn, and / or
• Termination.

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Part B
Key legal principles
behind professional
indemnity claims in
construction projects

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Contract vs. common law

What is contract law and Pure Economic Loss

common law? • This is where the claimant’s only loss is economic,
which is not consequential on damage to the
claimant’s own property (see for example the “Spartan
Common law Steel” case).
Common law is the body of law made by the Courts • For example, loss of profit, wasted expenditure or
through their judgments over the last 800 years, as diminution in value.
opposed to statute law which is made by the Crown via • Recovery of pure economic loss under a claim for
Parliament. For our purposes we are using the term to negligence is generally not possible, although there
mean rights that the parties to a construction project are are exceptions to this rule.
given by the law, as opposed to the rights that they
agree to give each other by contract. Causation
• In order to recover any losses, a claimant must
Contract law establish that the defendant’s action or inaction
Contract law is simply the law in relation to the caused its loss. This has two steps; factual and legal
agreements. Most contract law is common law, but there causation.
is some statute law e.g. the Contracts (Rights of Third • Factual causation: The defendant’s action (or inaction)
Parties) Act 1999. must have, as a matter of fact, caused the claimant’s
loss. This is established by the “but-for” test. So,
Key concepts but-for the defendant’s action or inaction, the
claimant’s loss would not have occurred.
Tort • Legal causation: This is often referred to as
The law of tort is the remedies provided by the Courts if “remoteness”. The tests in contract and tort are set
one person has injured another. out on page 13.

Direct and Indirect Losses

Negligence
• Distinction as to what damages are recoverable for
• Occurs when a defendant breaches a duty to take breach of a contract.
reasonable care, which causes loss to the claimant.
• These terms are used in exclusion clauses to limit the
• Negligence is a tort. parties’ liability to each other for certain losses.
• It is also possible to be liable for breach of contract as • Direct losses are often referred to as the first limb in
a result of breaching a contractual duty of care, often Hadley v Baxendale. They are losses which occur in
referred to as contractual negligence). the ordinary course of things. The parties are deemed
to have knowledge of such losses, regardless of
Measure of Damages whether or not they actually knew.
• Breach of contract - measure of damages is to put the • Indirect (or consequential) losses are often referred to
injured party in the position it would have been in had as the second limb in Hadley v Baxendale. These are
the contract been performed. losses which occur outside the ordinary course of
• Negligence - measure of damages is to put the injured things and are due to special circumstances which
party in the position it would have been in had the tort were known by the parties.
not been committed. • Loss of profit could be either direct or indirect.

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Limitation
• Once the limitation period for a claim has expired, the
defendant can raise limitation as a defence to the claim.
If successful, the court will not consider the substance
of the claim.
• The basic principles are set out in the Limitation Act
1980 (1980 Act), which provides that limitation periods
start to run from when the “cause of action accrues”.
When the “cause of action accrues” is set out in case
law.
• The cause of action in tort, and under a contract, may
occur at different times even though the wrong or
breach is the same. This is important because there
may be a longer limitation period in tort than in contract.
• Limitation periods can be suspended by a standstill
agreement. These require the consent of the claimant
and defendant.

Concurrent Liability
Parties can have concurrent liability, which is where they
owe each other obligations under both a contract and at
common law. However:
• This can be excluded through contractual terms;
• A concurrent duty does not arise simply because
a contract exists;
• A concurrent duty is more likely to arise in
professional appointments than a building
contract, due to an “assumption of responsibility”;
and
• The scope of the contractual duty of care
depends on the wording in the contract. See
Robinson v PE Jones (Contractors) Limited [2011]
EWCA Civ 9 for discussion on concurrent liability.

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Key differences between
contract and common law
Contract Common Law/Tort (Negligence)
• Obligations between the parties are set out in the • Obligations between the parties are set out at
contract. common law. These obligations are built up
• If either party breaches the terms of the contract through case law, which the courts continue to
(including terms implied by common law or review and update.
statute), the other party will have a claim for breach • There is no requirement for a contract between
of contract. the parties but a duty of care must be
Summary

established.
• In a construction project, the most relevant
claim at common law would be in the tort of
negligence.

• Cause of action accrues on the date the contract • Cause of action accrues on the date damage is
is breached. suffered (which can be significantly later than
• 6 years for a contract signed under hand. 12 years for a contractual claim).
for a deed (1980 Act s5 and s8). • Normally 6 years (1980 Act s2). For latent
• Parties can agree to shorten or lengthen this damage, it is the later of 6 years from when the
cause of action accrued and 3 years from when
period in their contract.
the claimant knew, or ought to have known, the
material facts about the loss suffered, the
identity of the defendant and the cause of
Pure Economic Limitation

action. This is subject to a long stop date of 15

years from when the negligent act / omission
occurred (1980 Act sections 14A and 14B).

• Recoverable, unless specifically excluded under • Only recoverable if there is a “special

the contract. relationship” between the parties, which
depends on the facts.
• Current case law suggests a building contract
will not normally imply such a “special
Loss

relationship”.

• Losses must be within the contemplation of the • Losses must have been reasonably foreseeable
parties at the time of formation of the contract. by the defendant at the time the duty was
• Direct losses are generally recoverable (unless breached.
Remoteness

excluded under the contract). • Often referred to as “The Wagon Mound” test.
• Indirect losses are not always recoverable. It • No distinction between direct and indirect
depends on the facts and in any event they are losses (although see comments on Pure
often excluded under the contract. Economic Loss).

• To put the claimant in the position it would have • To put the claimant in the position it would have
Quantification

been in had the contract been performed. been in had the tort not been committed.
• Useful for claimants in “good bargain” cases. • Useful for claimants in “bad bargain” cases.
of Loss

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Contractual “standard of care”
…and what it actually means

Reasonable Skill and Care Fit for Purpose

• The professional agrees to carry out its work using • A professional agrees that their work will be fit for the
reasonable skill and care. purpose required. For example, an architect agrees
• Whether or not this has been complied with is an the drawings he produces will be suitable for a
objective test: the “man on the Clapham omnibus”. specific use.
• For professional liability cases, the “Bolam” test is • If the drawings are not suitable, then the architect will
relevant. This judges professionals on the standard of be liable – regardless of whether he was negligent,
a reasonably competent practitioner having regard to the reason for the unsuitability or whether it was
the standards normally adopted in his profession at someone else’s fault.
the time of the act or omissions. • Often not covered by insurance policies.
• For example, if a professional complies with standard
practice or guidelines at the time of acting, he most
Strict Liability
likely will not be in breach, even if that guidance later • Similar to fitness for purpose.
turns out to be incorrect. • A professional (e.g. architect) agrees that the work
• Normally covered by insurance policies, but be careful they produce (e.g. drawings) will be entirely accurate.
of inadvertently agreeing to a higher standard without • If the drawings are not accurate, then the architect will
insurers’ approval. Eg where a project concerns a high be liable – regardless of whether or not he was
rise building, an Employer will often require a standard negligent, the reason for the error, the impact of
of a professional experienced in tall buildings. someone else, or any damage actually caused to the
claimant.

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Transferring obligations in
construction projects

Parties often need to transfer rights and obligations in construction projects. For example, in a
design and build scenario, the Developer often appoints the professional team to develop the initial
design. A Main Contractor is then appointed and the Developer transfers the professional team’s
appointments to the Main Contractor.
This can be achieved in two main ways; assignment or novation.

Assignment Novation

Transfers the benefit of a contract (eg to have works Transfers both the benefit and burden of the
carried out), but not the burden (eg to pay for the contract (eg to have works carried out and pay for
works). those works).
Extinguishes one contract and replaces it with a new
contract on the same terms but between different
parties.
Effect

Parties often agree to apportion services pre and

post novation.

Requires the consent of just the parties to the Requires the consent of all the parties (eg the
assignment (eg the Developer and the Contactor, but Developer, Contractor and the Professional).
not the professional). However, this can be amended
Best practice is to use a formal Novation Agreement.
through the terms of the contract, for example by
limiting the number of assignments or the identity of
the assignee.
Can be a legal or equitable assignment.
Best practice is a legal assignment. In order to be
effective, it must be:
• In writing: a verbal agreement is not sufficient;
• Absolute: it must be the unconditional assignment
of the whole of a right under the contract; and
• On notice: the third party (e.g. the professional)
must be given notice in writing of the assignment.
An equitable assignment is less formal, but also less
certain:
• Can be verbal or written;
• Does not require notice; and
• Transfers the equitable ownership, but not the
Formalities

legal ownership. The assignor (ie the Developer)

may therefore need to be involved in any
subsequent court proceedings against the
professional.

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What you need to establish to bring a claim

Establish the Breach Causation Loss

relationship

Tort: Tort: Same basic principles in tort and Mitigation:

contract, but see comments
• Duty of Care: “Caparo” test. • “Reasonable man” test or elsewhere on specific tests. • A claimant must take
“Bolam” test for professional reasonable steps to minimise
Contract: liability. Factual Causation: its loss and not take
• Agreement, consideration and unreasonable steps which
intention.
Contract: • “But-for” test. increase its loss. Burden of
• Depends on the specific terms proof is on defendant to prove
• Can be verbal. Legal Causation: a failure to mitigate.
• Includes express and implied of the contract.
terms.
• Intervening acts. Contributory
• Remoteness. Negligence
• Scope of the defendant’s duty
of care in respect of the kind of • Damages will be reduced
loss suffered: SAAMCo where the claimant was partly
principle (tort or contractual at fault (tort or contractual duty
of care only).
duty of care only).
Loss
• Not essential for breach of
contract claim. If there is no
loss, an award can be made for
Remember – the claimant must prove its case nominal damages (normally £1).
on the balance of probabilities. The facts must Of course if there is loss, then
support the claim! that must be proven…
Records are key!
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Summary of main dispute resolution forums
Dispute Basis for Binding? Confidential? Usual Qualifications Normal cost position Comments
Resolution forum timescales of decision
Forum maker
Adjudication Contract or Yes (usually Yes – unless 28 days (although it Anyone: lawyer, Normally each party bears The use of “smash and grab”
Statute (Housing on interim application is often extended). engineer, quantity their own (parties can adjudications has spiked and
Grants basis, until made to court. surveyor, architect… agree otherwise but is expected to decline.
Construction and finally (parties often agree ineffective if agreed prior
Regeneration Act determined by in their contract to service of adjudication
1996). litigation or either on the notice).
arbitration). individual or Adjudicator typically has
Adjudicator jurisdiction to order either
Nominating Body). party to pay his costs
(although they both remain
jointly and severally liable).
Expert Contract or Yes. Yes. Up to a couple of Expert in the Depends. Very difficult to appeal.
Determination ad-hoc months. relevant field: eg
agreement. quantity surveyor,
lawyer, engineer.
Mediation Agreement No (unless Yes. Quick – a day or so, No decision maker. Each party bears their own. Requires a desire from both
between the binding with a couple of Mediator is normally parties to settle the claim.
Share mediator’s fees and
parties. settlement weeks' preparation. accredited.
expenses.
agreement
signed).
Litigation Default if parties Yes. No. Normally 1 - 2 years. Judge. Loser pays. Pre-Action Protocol for
do not agree to Construction and Engineering
Specialist To be recoverable, costs
something else. Disputes should be followed
procedures can must be proportionately
prior to commencing claim,
sometimes be used, incurred. Rare to recover
unless there is a limitation
which can be 100% of costs.
deadline.
shorter, eg Part 8
Note Part 36 offers.
procedure can be Significant recent
as quick as 1 month. developments in relation to
cost management and
procedures.

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Dispute Basis for Binding? Confidential? Usual Qualifications Normal cost position Comments
Resolution forum timescales of decision
Forum maker
Arbitration Contract or Yes. Yes. Normally over 1 Varies. Can be a Loser pays. Parties can Can be quicker than litigation.
ad-hoc year, but generally sole arbitrator or a agree otherwise, however
agreement. shorter than tribunal. Arbitrators any agreement ineffective
litigation. can be legally if made before the dispute
qualified, or may be arises.
in the industry eg a Note Calderbank offers.
quantity surveyor.
Early Neutral Contract or No. Generally. Quick (weeks). Expert in the Each party bears their own. Quick and relatively cheap.
Evaluation ad-hoc relevant field: eg
Expert’s costs normally
agreement. quantity surveyor,
shared.
architect, engineer.
Judges sometimes
agree to do so at an
early stage of
litigation.
Industry or Professional Yes. No. Varies. Member of Varies. Often in conjunction with
other Consultant's disciplinary tribunal another dispute resolution
regulatory membership of of regulatory body. forum.
bodies eg regulatory body.
RIBA
Disciplinary
Committee

Tip: Make sure all the contracts in the

chain have the same dispute resolution
forum

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Insurance

Property Damage
and Business
Interruption (PDBI)
Insurance
Damage to property
and interruption to the
business (normally held
by the Employer).
Erection/
Employer’s Liability Construction All
(EL) Insurance Risks (EAR/CAR)
Protects against injury Covers all parties on a
to employees. specific project against loss
or damage to the works.

Types of
policies
Different losses will be dealt
with by different insurance
policies, for example:

Professional
Indemnity (PI) Contractors All Risk
Insurance (CAR) Insurance
Defective design. Regulatory Covers Contractor
bodies (and contracts) often for physical damage
require consultants to to the works and
maintain minimum levels site materials.
of insurance.
Public Liability
Insurance
Personal injury or death
to members of the
public caused by the
works; loss or damage
to certain property.

But scope of the insurance policy may be different

from the wording in the contract, leaving some
losses uninsured.
Note, defective workmanship: Normally not
covered by professional indemnity insurance.
Performance bonds or guarantees may protect
Employers.
Always check the policy wording! If in doubt, speak
with your broker or legal adviser.

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Experts

Experts can be used throughout a project and / or a

claim. Some examples of the roles that experts can play
are:

Prior to works
commencing to
advise on
tenders and
potential flash
points

Court /
During the works
regulatory body
to bring the
may appoint
project back on
expert to assist
track
them

Role of experts

During the works

as and when
Defence and disputes arise to
promotion of enable the
claims works to
progress

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Reduce the risk

If in doubt, take legal advice to ensure that you are not exposed to
unnecessary risks. For example: Any Questions?
1. Check the contractual chain: are contracts up and down the chain Contact us
back to back? If not, you may get caught out.
2. Always make sure that the contract and insurance policy are back
to back, eg standard of care.
Hannah Cane
3. Consider incorporating contractual wording to protect yourself Partner
where possible, such as:
T: +44 (0)207 788 2376
a) Net contribution clause; limits a party’s liability when two or more E: hannah.cane@wbd-uk.com
parties to a construction project are liable for the same loss or
damage. The liability of each party will be limited to the amount for
which it is responsible, as would be apportioned to that party by a Simon Lewis
court. Without it, each party could be liable for 100% of the loss and Partner
would then have to recover a contribution from contributing parties. T: +44 (0)191 279 9552
This takes time and money – and could potentially be impossible if E: simon.lewis@wbd-uk.com
the other party is insolvent or does not have sufficient insurance to
cover the loss.
David Skelton
b) Caps on liability; for example by reference to the Professional Partner
Consultant’s PI insurance.
T: +44 (0)175 267 7607
c) Shorter limitation periods than provided by the Limitation Act 1980. E: david.skelton@wbd-uk.com

d) Exclude certain types of losses; for example, exclude consequential

losses or anything excluded under the PI policy. Belinda Fox
Managing Associate
T: +44 (0)238 020 8155
E: belinda.fox@wbd-uk.com

Emily Leonard
Managing Associate
T: +44 (0)207 788 2322
E: emily.leonard@wbd-uk.com

Helen Pearce
Associate
T: +44 (0)207 788 2380
E: helen.pearce@wbd-uk.com
“Extremely knowledgeable and totally
effective at what they do.”
Zoe Lettieri
Chambers and Partners UK Guide 2018 Associate
T: +44 (0)117 989 6654
E: zoe.lettieri@wbd-uk.com

[The] team has ‘heaps of experience’

Hannah Gardiner
and ‘an attentive and proactive’ Solicitor
approach. T: +44 (0)207 788 2509
Legal 500 2018 E: hannah.gardiner@wbd-uk.com

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© Copyright 2018 Womble Bond Dickinson (UK) LLP. All rights reserved.
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Version 2 was published in March 2018. The law is therefore stated as at that date.