The RIBA has recently issued its Standard Agreement 2007 S-Con-07 for the appointment of an architect. The previous form, SFA/99, was the subject of criticism by the High Court in a 2005 case, Munkenbeck and Marshall v Harold. It described two of the terms as "unfair and onerous". Although those particular terms are now amended, the form contains the following clauses, which employers will be well-advised to amend or delete:
- The architect is obliged to perform his services only "so far as reasonably practicable". This could allow the architect a number of excuses for failure to perform.
- The architect is entitled to additional fees where he incurs extra expense "for reasons beyond [his] control". This is potentially wide enough to cover defaults of sub-consultants or even unforeseeable problems at the architect's own office (such as a sudden illness of a key person).
- There are obligations on the client to supply information that it can reasonably obtain that is necessary for the proper performance of the architect's services. This is wide-ranging, and could be onerous. It is presumably intended to cover such matters as site reports. The clause then allows the architects to rely on such information. This could be problematic unless the client has arranged for the original provider of the report to give the appropriate warranty.
- There is a "net contribution" clause. Clients should usually delete such a clause. It prevents the client claiming for its losses wherever it could also sue someone else for those same losses (regardless of whether it actually does).
- The client's copyright licence to use design material may be ineffective if there is a dispute about payment of fees. This can leave a client in an uncertain position (JCT 05 contains a similar difficulty for employers).
- Common law set-off rights are excluded.
- There is an optional provision for an overall cap on liability