Can an employer recover from a consultant sums paid to a contractor because design information was issued late?
Potentially, but not automatically. The employer must establish the consultant's breach of its appointment, a causal link to the contractor's liability and the reasonableness of the sum paid.
Recovery requires proof of consultant's breach, causal loss and a reasonable contractor settlement
Late information is not itself conclusive proof of professional breach. The delay may result from employer change, late decisions, another consultant, statutory input or events outside the consultant's responsibility. The employer must identify the duty breached, prove what timely competent performance required, connect the breach to each contractor cost and show that any settlement was reasonable. A global contractor settlement does not transfer automatically.
| Issue | Position |
|---|---|
| Late information | Fact requiring causal investigation |
| Consultant's duty | Taken from the executed appointment |
| Professional breach | Measured against the required standard of performance |
| Contractor payment | Must be linked to the consultant's breach |
| Settlement amount | Must be shown to be reasonable |
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