NEC4 Option A - Novated Design and Liability for Scope Changes


The Employer engaged with a Consultant to undertake the design for a highways scheme, this design was then novated to the Contractor upon contract award. Several weeks into the scheme, the Contractor is raising several RFI’s/TQ’s as the novated design is incomplete in areas and missing significant detail to enable construction as per the specification. The Consultant is proposing changes to the design when responding to RFI’s which is resulting in additional cost and time to the Contractor. The Consultant is now proposing alternative methods of working and additional materials (as an example) which were not allowed for at tender stage.


As Contractor has taken ownership of the design away from the Employer via novation, is there a way to claim against the Consultant or Employer for a change in design (instructed by the Consultant) under the Contract? Is there a route for the Contractor to demonstrate that the pre-novated design was not fit for purpose or is there equal ownership on the Contractor to thoroughly check that the construction design is fit for purpose before novation.

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In typical lawyer fashion I am going to say that this all depends on the terms of the appointment of the Consultant and the scope of services it agreed to provide and probably the terms of the Deed of Novation. In theory you should have a good claim against the Consultant for failing to design using reasonable skill and care; but I would recommend a thorough review of the appointment first. Hope this helps.

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Thanks for the reply, Mike.

The Contractor and Consultant are engaged under a NEC3 PSSC (Contractor listed as the Client in this SC) and the Consultants scope is to “Provide fixed task elements outside of Main Contract Novation duties.” so nothing directly related to any pre-novation works undertaken.

Within the Deeds of Novation a clause reads " … The Consultant agrees that it shall be liable for all losses suffered by the Contractor as a result of any breaches of such obligations whether or not such losses were suffered by the Employer (whether solely or jointly with the Contractor or otherwise) and whether or not such losses were suffered or caused prior to the date hereof." On this basis could the Contractor pursue a claim loss on the basis of missing design information and changes to the design caused by the Consultant via terms within the PSSC?

I think that you would be well within your rights to bring a claim. If you need any further advice please get in touch.