As such, the advice in relation to having a clear engagement is two-fold. It is absolutely correct to have a written contract and a clear schedule of services. However, the second limb of the advice is to stick to it and avoid being drawn into areas which are not contained in the engagement. If this is undesirable, and the services in the project develop and evolve, then it is sensible to “retrench” the engagement in order to re-clarify what the professional is – often critically – is not doing.
Engineers have access to a two-edged contractual sword in this respect. On the one hand, the variation of contract and additional service mechanisms are standard practice in their projects. They have readier access than many professionals to mechanisms to retrench or vary their engagement, and such a revision should not be greeted with incomprehension on the part of the client. However, unlike many other professionals in different areas of business, expanding the scope of their services in order to reflect an underlying reality may be treated as opportunism, and the same additional fee mechanisms may be viewed with suspicion and even hostility by their employer.
This may be a difficult line to walk, but attention in this area can provide real benefits in terms of managing liability.
A claimant’s accusation that they expected the professional to do something can potentially be very easily met if there is a detailed scope or schedule of services, which has been kept up to date with the developments in the project, and the service or obligation in question isn’t included. Conversely, if there is doubt about the professional’s scope the only winners tend to be lawyers as they argue the merits of the accusation one way or the other, with there being no clear answer one way or the other.
As such a clear scope of services at all points in the timescale of the project can be seen as a defensive risk management step, which is of real benefit in seeing off a mistaken or opportunistic claimant.
There has also been a tendency in recent years for contractors and others to include very general references to services expected or services ancillary to the scope of services. As these introduce the same ambiguity highlighted above, such general material should be resisted.