A professional consultant or design and build contractor’s duty of care is usually expressed as requiring it to exercise “reasonable skill and care” or “all reasonable skill and care”. Does the “all” add anything and, if so, what?
Case law is limited
It seems obvious that, if the word “all” adds anything, it increases the professional consultant’s burden. However, there is little case law on this specific point. In fact, the only recent judgment that mentions “all reasonable skill and care” seems to be Liberty Syndicate Management v Campagna Ltd. Even in that case, the judgment focused on the scope of a technical auditor’s duty, rather that the specific effect of the word “all”.
Absent direct authority, is it possible to draw analogies with similar wording in other contract clauses? Only to a limited extent. For example, we can look at the effect of adding “all” to a reasonable endeavours obligation (which the courts most recently considered in Jet2.com Ltd v Blackpool Airport Ltd). However, the main lesson from that case is that adding “all” has varying effects depending on the situation.
It is difficult to reach concrete conclusions from available case law. It seems that the extent to which “all” adds anything to a reasonable skill and care obligation depends on the context of the contract and the services provided. So what wording do parties actually use in the real world?
What is market practice?
Bespoke agreements often include the word “all” and professional consultants and design and build contractors seldom object to its use. For example PLC Construction’s Schedule of amendments to JCT Design and Build Contract, 2011 edition amends that standard form to refer to “all reasonable skill and care”. Likewise PLC Construction’s Professional appointment refers to “all reasonable skill and care”.
In contrast, many standard forms of professional appointment do not include the word “all” in their duty of care wording. For example, the RIBA Standard Agreement for the Appointment of a Consultant 2010 provides that the professional consultant “shall exercise reasonable skill, care and diligence…” (clause 2.1). This may be because those standard forms are often published by professional bodies representing the interests of professional consultants. Many clients are content with such wording, but a professionally advised client often insists on substantial amendments to a standard form professional appointment before agreeing to it. In that situation, requiring “all” reasonable skill and care is usually one of the least controversial changes.
From a practical perspective, if you reach an impasse when negotiating a duty of care clause:
- It may be helpful to consider other wording that achieves your client’s aims. For example, perhaps it is acceptable to remove “all”, but add wording making it clear that the duty of care relates to the standards expected of a professional consultant employed on a certain type of project (such as a “high-specification City of London office development”). While this type of wording is sometimes used, the extent to which it increases the contractor’s or professional consultant’s standard of care is arguable and depends on the factual background.
- You should consider the professional consultant or design and build contractor’s real concern. If the main priority is avoiding any hint of a fitness for purpose obligation, it may be possible to retain “all” in exchange for inserting wording clarifying that the standard of care does not impose a fitness for purpose duty. Again, the precise effect of this wording will depend on the circumstances.
These approaches require additional drafting, but may allow the parties to finalise their contract.