3.1 The need for a written appointment

The contract that you make with the client on a job is described in this book as your ‘professional appointment’, or just simply the ‘appointment’. For professionals, as opposed to contractors or subcontractors, it is traditional to refer to the binding agreement made with the client in this way. It is helpful in that it avoids any confusion that might arise when referring to the ‘contract’ with the main contractor on a project. But simply put, the architect’s appointment is their contract with the client.

Some publications refer to the ‘fee agreement’ when meaning the professional appointment, but this is potentially misleading. The appointment is not just about recording your level of fees. A good appointment will set out, in some detail, your fees, your services (the ‘what you have to do’ part), and your terms and conditions of appointment – the part that records the standard of care you must achieve when performing those services.

There is nothing that prescribes the form of appointment that an architect must have, and nothing to tell you how to recognise an appointment or what is should look like. In theory, the contract may be simple or complex, made by email or exchange of letters, or as a ‘deed’, in a standard form, or a bespoke form, or even through an oral agreement not recorded in writing. This is just the theory though. In practice, there is every good reason to have a properly thought-out contract in writing, every time. The Architects Registration Board (ARB) and RIBA Code of Conduct both require the architect to have a written appointment agreement in place before the architect performs any substantive services.

Some architects are wary of pushing for the agreement of a formal appointment, particularly on smaller projects, with domestic (not commercial) clients or at times in the economic cycle when competition for work is intense. The perception is that clients may be put off by large amounts of paperwork, or that a client will see an architect presenting proposed appointment terms as having an unhealthy interest in protecting their own position or entitlement to fees. Alternatively, architects can get caught up in the whirlwind of a fast-moving job, where there always seems to be something more important or urgent to do than settle the appointment terms, or sometimes an architect will want to concentrate on ‘being an architect’ rather than acting like a pseudo-lawyer. These are all dangerous positions to take.

Well-thought-out written appointment terms provide vitally important benefits and protection to both you and your client, especially in the situations where it is most likely that appointment terms will not be properly addressed – for example with a naïve domestic client, with a client who does not want to engage with the detail, or on a fast-moving commercial project. Agreeing the appointment terms, and taking the initiative to ensure that the issue is not forgotten even if the client is reluctant to address it, is not self-interest – it is ‘being an architect’.

3.1.1 What are the applicable professional standards?

The ARB, created by the Architects Act 1997, is the UK’s statutory regulator of architects. It maintains a public register, searchable online, of around 33,000 architects. The RIBA, founded in 1834, is a non-statutory body and receives no government funding, but acts on behalf of its 40,000 members for the general advancement of civil architecture through the promotion of its three guiding principles: integrity, competence and respect for the rights of others.

Both the ARB and the RIBA have written codes of professional conduct and, as discussed further in Chapter 10, each has investigative and disciplinary powers in relation to breaches of their code. Although only the ARB operating under the Architects Act, has the power to impose fines for breaches of its code, both bodies have the power to suspend or erase an architect’s name from their list. A suspension imposed by the ARB would effectively prevent an architect from describing themselves as an architect during the period of suspension, and a suspension imposed by the RIBA would prevent the architect from using the RIBA title; either of which may be expected to have a potentially serious effect on the architect’s ability to practise until reinstated. The ARB and RIBA disciplinary procedures are considered in detail in Chapter 10.

Both the ARB Code and the RIBA Code set out detailed requirements for certain elements making up the agreement with the client to be set out in writing.

The terms of the RIBA Code (Guidance Note 3) focus on the obligation of members to provide to their client, clearly and in writing at the outset of any project, their terms and conditions of appointment and ‘scope of works’. Guidance Note 3 cross-refers to the current RIBA Standard PSC 2018 as ‘detailing the key requirements of an appointment’. Previous versions of the Guidance Note provided that the terms of appointment should include:

• a clear statement of the client’s requirements
• a clear definition of the services required
• an obligation to perform the services with due skill and care
• an obligation to keep the client informed of progress
• the roles of other parties who will provide services to the project
• the name of any people with authority to act on behalf of the client
• procedures for calculation and payment of fees and expenses
• any limitation of liability and insurance
• provisions for protection of copyright and confidential information
• provisions for suspension and determination
• provisions for dispute resolution.

The ARB Code (Architects Code: Standards of Professional Conduct and Practice, January 2017 iteration) is, if anything, more strict. Instead of merely ‘providing’ terms of appointment, a requirement which could be complied with by, for example, cross-referring to a standard form of appointment in correspondence, the ARB Code provides in Standard 4.4 that before undertaking any professional work an architect must actually enter into a written agreement with their client, and the agreement must adequately cover:

• the contracting parties
• the scope of work
• the fee or method of calculating it
• who will be responsible for what
• the extent to which any of the architectural services will be subcontracted
• any constraints or limitations on the responsibilities of the parties
• the provisions for suspension or termination of the agreement
• a statement that the architect meets ARB insurance cover requirements
• a statement that the architect is ARB registered and subject to the ARB Code
• the architect’s complaints-handling procedure
• the ability of the client to refer complaints to the ARB
• details of any special arrangements for resolving disputes.

In order not to fall foul of the professional standards, therefore, agreeing a written appointment prior to beginning work is not merely an option but a necessity.

3.1.2 Avoiding disputes over fees and the scope of work

The two go hand in hand. Inadequate or ambiguous terms of appointment may not always be the root cause of a dispute, but the failure of the parties to properly describe the essentials – who is doing what, when and for how much – can easily exacerbate a dispute which has arisen for other reasons.

Unless it is set out unambiguously in writing, there will always be scope for disagreement about what constitutes a ‘basic’ service, on the basis of which the basic fee is paid, and what is ‘additional’. Why allow the potential for a dispute? An architect’s fee should be based on an expectation of what it is they will be asked to do, so it is common sense to set out a clear list of basic services and a list of potential additional services (ideally based on the RIBA Standard Professional Services Contract 2018 Services Schedule, with as much additional detail about the services as possible). There should also be a mechanism for calculating the basic fee and a statement of what it is, and a mechanism for calculating the additional fees.

Without these basics, there may be scope for payments to be delayed because it is unclear what sum is ‘due’ or what documentation the architect must present to the client when issuing accounts for payment. Cross-referring to the fee payment mechanism in another document, for example a standard form appointment, is never adequate. You should set out the fee payment provisions in the appointment document, in the context in which they will be operated.

3.1.3 Professional indemnity insurance requirements

A professional indemnity insurer can be expected to take a keen interest in the terms of any professional appointment, framework agreement, collateral warranty or other contract that the architect enters into in relation to their professional work. There may be a possibility of significant benefits for the architect if the insurer is given the opportunity to comment on the legal terms and conditions and the architect agrees to comply with the legal advice given by the insurer or on the insurer’s behalf. There is conversely likely to be the risk of an increased insurance premium if the insurer becomes aware that its insured does not have a procedure for reviewing or negotiating the terms of its professional appointments, and does not typically negotiate out contractual liability provisions that are more onerous than the market standard.

3.2 Execution of documents

3.2.1 What is execution?

There are a number of different ways to validly ‘execute’ (signify your intention to be bound by) an appointment. All forms of execution involve marking the appointment document on its face in some way, either through the signature of relevant parties who are capable of binding the practice (for example, the partners) or by using a company seal – a stamp purchased from a law stationers that marks documents with a ‘seal' incorporating the name of the company. The way in which an appointment is executed will depend partly on the nature of the document being agreed – is it to be a simple contract, or a deed? How you execute the appointment will also partly depend on the legal capacity in which you are executing the document – are you executing the appointment in your capacity as an individual, a partnership, a limited liability partnership or a company?

3.2.2 Simple contract or deed?

There is no hard and fast rule, but typically the bigger the project and the more sophisticated the client, the more likely it is that you will be required to execute your appointment as a deed. A high contract value, a complex build, the involvement of large numbers of contractors and consultants, and the use by the client of third party funding are all factors that would tend to lead to an architect being appointed by deed. In contrast, an appointment on a small-scale project such as a domestic refurbishment may often be executed as a simple contract, or ‘under hand’. This terminology refers to the way in which parties execute a simple contract by their ‘hands’ (signature), and dates back to the days when a signature was not enough on its own to execute a document as a deed.

Why the difference? It all comes down to the respective contractua limitation periods. As discussed before in this book (see section 2.4.2), the limitation period for actions under a deed is 12 years, and for actions under a simple contract the period is 6 years. A large project may take up a significant part of that 6 years before it is completed. If clients and funders are spending a lot of money on a project, they will want to protect their investment as effectively as possible for as long as possible. The way they typically achieve this is by having all the project documents, including the appointment of (or collateral warranties from) any professional executed as deeds.

There is no requirement for the actual working content – the terms and conditions – of an appointment to be different if it is going to be executed as a deed as opposed to being executed as a simple contract. Most standard form appointments and building contracts contain signature blocks (formally known as ‘execution’ or ‘attestation’ clauses, but simply the section in a contract where the parties sign and/or attach their company seal) suitable for either. In practice, though, it is common for a deed of appointment to be longer and more detailed and for appointments executed under hand to be shorter, usually covering the same issues but in a less comprehensive way.

3.2.3 Execution as a deed

A number of formalities must be complied with in terms of the description and signing of an agreement in order to make it a deed. The agreement must:

• be in writing
• make clear on its face that the parties making it intended it to be a deed; for example, by describing itself on its front sheet as a ‘deed of appointment’, and also by stating ‘This deed is dated …’
• be validly executed as a deed by the parties, so the signature block must explicitly say ‘Executed as a deed …’
• be delivered.

‘Delivered’ in this context is a term with a long history, dating back to an age when parties were required to physically hand over the executed deed. Its meaning now is more conceptual; a deed is delivered by a party when they signify their intention to be irrevocably bound by its terms, so for many purposes the act of executing a deed incorporates delivery. The three ways in which a deed may be ‘delivered’ are considered in the case of Silver Queen Maritime Ltd v Persia Petroleum Services plc [2010] EWHC 2867 (QB).

There are numerous ways for parties to execute an appointment as a deed, depending on their legal capacity, but a signature block for a practice set up as a partnership would typically be provided as follows:

Each partner will sign, then the witness of each partner’s signature; the client will sign in the way appropriate for them.

3.2.4 Execution under hand

No special formalities are required on the face of the appointment for execution under hand. The signature block for an appointment being executed in this way will typically be provided as follows:

3.2.5 Execution by an individual

An architect who practises as a sole trader is able, as an individual to execute contracts both under hand and as a deed, by signing the document in question in the presence of a witness, who also signs. To indicate that the witness has been present during signing it is generally sufficient after the architect’s signature for the contract to read ‘in the presence of’ and be followed by the signature of the witness. It is a good habit to get into to ask the witness to also print their name, address and occupation. If there is any subsequent dispute about the circumstances in which the contract was witnessed, this will make it easier for the witness to be identified and located, if required to give evidence.

In order for the contract to be executed as a deed by an individual, the document must in addition comply with the usual formalities required for a deed, as described above.

3.2.6 Execution by a partnership

For reasons of tradition and convenience, many group practices are in the form of a partnership. A partnership is described as a ‘firm’ never a company. Also in contrast with a company, a partnership does not have legal capacity in its own right – the partnership is simply the individuals who comprise it. It is best practice for the partners involved to execute a partnership deed, a contract setting out their respective rights and obligations. Although a number of profitable businesses over the years have operated without this degree of formality, it is strongly recommended that the nature of the working relationship is clarified whenever two or more architects act together. The question of whether a partnership exists or not can be very important in the context of collective liability, for example, and intellectual property rights.

The way in which a partnership executes deeds and other contracts is highly dependent on the provisions of any partnership deed, which will, among other things, shed light on the question of who has authority to commit the partnership to a contract (to ‘bind’ the partnership). Generally, under the Partnership Act 1890, every partner is an agent of the firm and their other partners for the purpose of the partnership’s business, and the acts of every partner will bind the firm and their partners. For the execution of contracts under hand, the signature of one partner will suffice to bind the partnership, provided the partner had authority to act for the firm. A partner’s authority is based on the principle of ‘agency’ – the Partnership Act provides that each partner is the agent of the partnership for the partnership’s business purposes.

The position is different for execution as a deed. Generally, one or more partners do not have implied authority to execute a deed that will bind the firm. Authority to execute a deed on behalf of a partnership must itself be conferred by a deed – usually in the form of the partnership deed, or a separate ‘power of attorney’ which must be executed by all the partners. If this authority is given, and the deed explicitly states that the partnership is executing the deed by a single partner as its agent, then a single partner may execute a deed so as to bind the partnership.

If no delegated authority is given in this way, a deed can only be validly executed by all the partners.

3.2.7 Execution by a limited liability partnership

The Limited Liability Partnerships Act 2000 created this new way of organising a business. The aim of a limited liability partnership (LLP) is to combine the benefits of limited liability that are conferred by company status with the other beneficial attributes of a traditional partnership structure. The LLP concept has proved very popular in some fields – the overwhelming majority of large law firms are now LLPs.

One important difference from the traditional partnership model is that an LLP has a legal personality separate from that of its members (the LLP equivalent of partners in a partnership). A Statutory Instrument – the Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009, SI 2009/1804 – allows LLPs to execute deeds and documents in the same way as companies. Execution of a deed requires two members to sign the deed on behalf of the LLP, or to use the common seal of the LLP witnessed (and signed) by two members, or (this was the key change to execution of documents rendered by the Companies Act 2006) the signature of a single member acting on behalf of the LLP in the presence of a witness.

3.2.8 Execution by a company

An appointment may be executed by a company in a number of ways. It can be signed by a director in the presence of a witness who also signs (the additional procedure allowed by the Companies Act 2006), or by two directors, or by a director and the company secretary, but as long as the document also states that it is duly executed by the company then any of these forms of execution will be valid and will have the same effect as execution using the common seal of the company. This rule comes from the Companies Act 2006 section 44(4). In order for a company to execute an appointment as a deed, the formalities for a deed as set out above must also be complied with.

3.2.9 Dating a contract or deed

The date when the appointment, or any other contract, is executed by all parties and delivered should be made clear on the face of the document. The primary purpose of this is to show when the parties intended unequivocally to be bound by the terms of the agreement. The dating of the document will be done by hand, often by the lawyers for the originator of the document. In a standard form appointment there will always be a space for adding the date of execution; with a bespoke appointment, the date will often be added in a space on the front sheet. If the date is not written in, this will not generally invalidate the contract or deed; it simply means that any party seeking to rely on the date when the document took effect (the date of delivery, which is generally the date it is executed) will have to prove what that date was.

The date of the contract or appointment is not relevant to the liability limitation period.

It is rare nowadays for all parties to be present and sign at the same time, so the date of an appointment will be the date when the last party executed it. It is bad practice to back-date any contract, especially a deed. Sometimes, usually in the context of a bespoke appointment, a contract will contain a clause setting out its ‘effective date’. This may be earlier than the date when the document is executed, and will be intended by the client to ensure that all the work provided by the consultant or other service provider is viewed as being provided under and subject to the appointment, even if the first services were provided some time before execution of the appointment.

There are risks for an architect in agreeing to such an arrangement. If there is any question that any of the early services may have been provided in a way which does not meet the standards imposed by the subsequent appointment then either the ‘effective date’ should be rejected altogether or it should be agreed that the effective date does not apply to any specified services which do not comply with the appointment. A client will always push hard to ensure that all of the services provided by an architect, whether before or after the date of the appointment, are covered by its terms.

How would it work in practice if an architect knew that some of their early services were not in compliance with the form of appointment they were subsequently asked to sign? The client cannot force the architect to sign, but if the client insists that all of the services must be covered by the appointment, both parties are faced with a choice. For the architect, is the likely consequence of signing an appointment, knowing that they are in breach of its terms, a more serious risk than the consequences of not having a signed appointment at all? Can the architect do anything to bring the non-compliant early services into line with the appointment terms? Can the client be persuaded to compromise? After all, there are distinct disadvantages for the client in not having a signed appointment; without a signed contract, each party is taking a chance on what a court will decide has been agreed between the parties.

3.2.10 Do not take shortcuts

The approach to finalising and executing deeds and documents in the construction industry can be overly ‘relaxed’, sometimes because of the scale of the task involved. With a large number of documents involved in large construction projects, and with these regularly requiring last-minute amendments, standards can slip. However, there is no reason at all for an architect to get drawn into this culture. The general rule must be for an architect to exercise caution at all times when it comes to the execution of documents, whether this means the architect’s own appointment or collateral warranties, or the execution of any other construction documentation, for example the building contract, that the architect is required to organise. Because the execution of a contract is the only way for a party to show a court unequivocally what it intended to agree, the courts have tended to take a strict line when it comes to defective execution, especially of deeds.

By way of example, the case of R (on the application of Mercury Tax Group and another) v HMRC (the Mercury case) involved the dubious practice of ‘recycling’ a signature page, where the party organising the signing of documents by a number of parties took a signature from a superseded draft and attached it to a revised final contract to convey agreement of its terms by the signing party. This practice no doubt takes place regularly in the business world to avoid the potential inconvenience or embarrassment caused when an amendment is required to documents that have already been signed by all parties. The court confirmed that a signature on an incomplete draft contract or deed cannot be transferred and used to validly execute an amended final version of the document. This is common sense; the law and practice around the execution of contracts and deeds exists to protect commercial parties against the effects of fraud and mistake.

What if an amendment has to be made to a contract or deed after execution by all parties?

If the agreement has been executed by all the parties and contains a specified procedure for making amendments, this procedure must be complied with. For example, there may be a clause providing that:

After differing views had previously been expressed by English courts, the Supreme Court in the case of Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24 (16 May 2018) has confirmed that such ‘no oral variation’ clauses are effective. The court considered that there are legitimate commercial reasons for including such a clause in a contract, most obviously to avoid misunderstandings or disputes about whether a variation to the contract was intended.

If there is no specified procedure, it depends whether the document is a deed, and also whether the proposed changes are ‘material’ – whether the amendments alter the legal effect of the document on the respective parties, in terms of their rights and obligations under it. In short, if a document is not a deed the formalities for amending it post-execution are more relaxed, as long as the amendments are shown to be agreed by all of the parties.

With a deed, the position is more complicated. A non-material amendment, such as adding the date to the face of the deed, or filling in a blank – for example, adding the name of the structural engineer in a list of consultants – will not affect the validity of the deed, even if there is nothing to show that both parties agreed to the information being completed; this guidance comes from the case of Raiffeisen Zentralbank Osterreich AG v Crossseas Shipping Ltd. For a material alteration, both parties must consent, and demonstrate their consent, if the deed is not to be rendered void. An agreement to vary the material terms of a deed must possess the attributes of a contract, but does not necessarily have to be a deed.

It is possible to amend a deed without executing a deed of amendment or variation, as long as both parties signify their agreement to the changes and there is valuable consideration (see section 2.2.2); this could be done by a simple contract, by letter, by an exchange of emails, or even orally. However, the latter approach would store up trouble for the future in the event of a dispute about what amendments were agreed. What often happens in practice is that the parties agree to amend a document and arrange for amendments to be made ‘in manuscript’ (with handwritten additions or crossing out on the face of the document) by the lawyers for the party who originated the document. But bearing in mind the strictness with which the courts have applied the rules relating to the validity of execution of deeds, as in the Mercury case, proceeding with caution is sensible, even if it results in increased administration and takes longer. The safest approach, for all but the most minor material amendments to a deed, is to record the agreement of the parties to the amendments in a separate document that is itself executed as a deed.

3.3 Who writes the written appointment?

What are the options for a written form of appointment? There are various standard form appointments drafted by industry bodies. The RIBA form has traditionally been the most popular standard form of appointment for an architect, and would seem the obvious place to start. The current suite of appointments, the RIBA 2018 Professional Services Contracts, contains standard appointments in booklet form appropriate to a number of scenarios:

• a standard appointment appropriate for medium- or large-scale projects
• a concise, less detailed agreement for smaller projects
• a domestic agreement
• a sub-consultant’s appointment
• a principal designer’s appointment.

Unfortunately certain clients, particularly commercial clients, may not want to accept the appointment of an architect on the basis of an RIBA standard form without amending its terms to achieve a better balance of risk between the parties.

It is open to an architect to take the initiative by proposing their own bespoke form of appointment, typically a document worked up by a lawyer, which can be adapted to suit the needs of an individual project. Because of the expense of obtaining professional legal input, these are usually the preserve of major architectural practices taking on large-scale commercial work. Smaller practices may have ‘home-made’ standard terms or engagement letters; however, it is generally not wise to use a document which has not been commented on by a lawyer. Commercially savvy clients will often be reluctant to agree a bespoke form of appointment proposed by an architect, but a less sophisticated client engaging in a one-off project may welcome this approach.

Large-scale commercial clients who regularly engage in construction work will often have their own bespoke forms, or they will instruct firms of solicitors who will issue their own bespoke form of appointment to the architect for agreement. Any such document can be expected to favour the client’s interests at the expense of the consultant, and should not be entered into without comment from legal advisors and insurers.

Whatever the nature of the document used as a starting point, each appointment on each project should be fully negotiated by the architect to ensure that the final signed version is appropriately tailored to the project in question and properly records all the terms of agreement between the parties.

Different projects will involve different balances of bargaining power between the architect and the client. A first-time domestic client may welcome an architect taking the initiative and issuing appointment terms, for example through a standard form booklet, for approval. In these circumstances, the architect should recommend in writing that the client seeks independent legal advice, but should in any case highlight any important or potentially onerous terms, such as limitations on their liability. Consumer clients are protected by the Consumer Rights Act 2015, which effectively requires contract terms to be individually negotiated in this way – failure to do so could lead to certain terms of the appointment being invalidated. When the terms are agreed, it will be for the architect to tailor the standard form to the project by completing the blanks in the booklet – the names of the parties, the fee and so on. It is good practice to issue two copies for signing, so that each party may keep an original for their records. Ideally, signing should be at a face-to-face meeting with the client to allow them to ask any last-minute questions and talk through the terms again as necessary.

In contrast, an experienced commercial client will not usually seek the advice of the architect in relation to the architect’s own appointment, but will have their own legal advisors. Such a client will be used to getting their own way, particularly if negotiating through its solicitors with an architecture practice that is looking to take a step up in terms of the size and complexity of work it is involved in. In these circumstances, a bespoke form of appointment will typically be issued by the client’s solicitors for comment. After negotiation, those solicitors will issue the agreed form to the architect to sign; this may be called an ‘engrossment’, a technical legal term which means a document in its final form (and in practice means it may be bound, printed on slightly better paper and have a plastic cover), which will be subject to no further amendments and is ready for signature. The consultant will be expected to sign first, and then return the document to the client, usually via their solicitors to check that signing has been carried out properly. It is recommended that an architect takes a copy of any document they sign, even if the client has not signed it at that point. A final ‘completed’ copy (one signed by both parties and dated) may not, for whatever reason, be forthcoming.

Chapter summary

• An architect should always insist on a written appointment.
• Writing down the terms of the agreement between the parties protects both the architect and the client.
• The way a document is signed will change its legal effect.