The following example clauses illustrate ideas which may be helpful in mitigating liability in contracts. Please do not hesitate to contact our Technical team to discuss these ideas further.

Please note that any defined terms in the clause should be harmonised with those used in the contract. For ease of identification we have highlighted words which are commonly defined terms.

Please note that any limitation clauses or exclusion clauses are subject to the Unfair Contract Terms Act 1977, and therefore cannot be considered 100% reliable. The efficacy of the clause will be dependent on the individual circumstances and the judgement of the court.

Appointments for the provision of professional services

“Overriding Reasonable Skill and Care Clause”

Notwithstanding anything to the contrary contained in this Appointment, the Consultant shall not be construed as owing any greater duty than the use of reasonable skill and care in accordance with the normal standards of its profession.

“Exclusion of Uninsured Loss Clause”

The liability of the Consultant under or in connection with this Appointment whether in contract or in tort, in negligence, for breach of statutory duty or otherwise in respect of any claim or series of claims shall not exceed the amount, if any, recoverable by the Consultant by way of indemnity against the claim or claims in question under professional indemnity insurance taken out by the Consultant and in force at the time that the claims or (if earlier) circumstances that may give rise to the claim is or are reported to the insurers in question.

“Net Contribution Clause”

The Consultant’s liability shall be limited to that proportion of loss which it would be just and equitable to require the Consultant to pay having regard to the extent of the Consultant’s responsibility for the same and on the basis that those other contractors, consultants and suppliers who were engaged in connection with the project shall be deemed to have provided contractual undertakings on terms no less onerous than this Engagement to the Client in respect of the performance of their services and shall be deemed to have paid to the Client such proportion as it would be just and equitable for them to pay having regard to the extent of their responsibility.

Collateral Warranties, Letters of Reliance, Certificates

No Greater Liability Clause”

The Consultant has no liability under this Deed which is greater or of longer duration than it would have had if the Beneficiary had been a party to the Appointment as joint employer.

The Consultant shall be entitled in any action or proceedings brought by the Beneficiary under this Deed to rely on any limitation in the Appointment and to raise equivalent rights in defence of liability (but excluding set-offs and counterclaims)  as would have been available to the Consultant had the Beneficiary been the employer under the Appointment.

“Net Contribution Clause”

The Consultant’s liability shall be limited to that proportion of loss which it would be just and equitable to require the Consultant to pay having regard to the extent of the Consultant’s responsibility for the same and on the basis that those other contractors, consultants and suppliers who were engaged in connection with the project shall be deemed to have provided contractual undertakings on terms no less onerous than this Engagement to the Client in respect of the performance of their services and shall be deemed to have paid to the Client such proportion as it would be just and equitable for them to pay having regard to the extent of their responsibility.