Legalese: It is good practicefor there to be a clear list of basic services and seperate lists for additional services says Mark Klimt
I frequently receive calls on the RIBA Helpline from architects who have resolved to end their appointment with a particularly demanding client. I am struck by the single-minded determination of these consultants to end the association, despite the present unfavourable trading conditions and despite any inconvenience or liability that the consultant might face as a result.
Very often the tipping point is the client’s ungrateful attitude towards the consultant’s additional services, which affronts the architect because of latitude that has already been extended to the client. It is as if a switch has been flicked in the architect’s mind, as all the indulgences that have been afforded to the client lead the architect to the immovable conclusion ‘no more’. In a way, it is the passion and commitment to a project turned in upon itself.
There are, though, a few steps that it would be prudent to take at the beginning and throughout a commission, in order to give oneself the best chance of avoiding this sort of meltdown. The starting point, as with so many issues, is to try and have an agreement that is clearly worded and explains precisely what will be a basic service and what will be an additional service. This is likely to involve protracted and detailed discussion which some architects are reluctant to engage in at the start of a project for fear of poisoning the well before the relationship is under way.
However, a responsible client ought also to recognise the benefit of having certainty in the contract. It is good practice, therefore, for there to be a clear list of basic services and separate lists for additional or other services (such as is contained in the RIBA Standard Appointment documents).
Provision should also be made - and this is particularly important where the architect has agreed a lump sum for basic services - for a basic service to become an additional service if it expands (whether in time or volume) beyond what could reasonably have been contemplated when the fee was agreed.
For example, a clause could be added stating that if the work increased by more than X per cent, this shall be separately remunerated as an additional service.
A client, meanwhile, will want a mechanism whereby it is informed when additional services arise and additional costs accrue. Such a mechanism must, though, be workable both ways. An architect should not commit to giving a precise advance quote for additional services, because it is unlikely that the extent of the required services will be known ahead of time.
Also, if there is a process whereby the client is to approve these additional services in advance, there should also be a fall-back process if the client drags its feet over any such decision. Too often, a client will rely upon the professional commitment of its architect to do what is necessary, without actually formally endorsing this action, thereby putting the architect’s chance of recovering fees at risk.
Once a workable mechanism has been agreed between the parties, the architect must ensure that it complies with the process, rather than relying on the far more uncertain route of the additional fees being recoverable because they were incurred with the client’s actual or implied knowledge. If formal written notice needs to be given, for example, then this should be done.
Just as a client is not prepared to be held to ransom over fees incurred without its consent, an architect should not allow itself to be put in the position of being professionally compromised. A well-worded suspension or termination clause covering the eventuality of client approval not being provided is therefore necessary. Ironically, particularly as these recommendations are proposed in order to avoid a bitter falling-out with the client, the clearer and simpler the termination provisions are, the less likely it is that they will ever be called upon.
Mark Klimt is a partner at Fishburns. He is legal adviser to the RIBA and operates the RIBA Helpline