How to Test Whether a Net-Contribution Clause Limits Recovery to a Just and Equitable Share

In practice, mark this net-contribution sentence against four tests before the appointment and the warranty are signed: a responsibility share, the roles the words name, each deeming sentence, and whether death or personal injury sits outside this sentence. That is how to test whether a net-contribution clause limits recovery to a just and equitable share for one appointment in England and Wales.

The draft appoints a quantity surveyor and employer agent for a design-and-build office conversion in England. English law applies, the courts are those of England and Wales, and the signing date is Friday 23 October 2026. Clause 9.2 is a just and equitable share against the architect and the services engineer. Clause 9.1 is a £1,000,000 cap, and the death carve-out names clause 9.1 only. There is no deeming sentence. Schedule 4 is silent. On 18 October 2026 the broker said the contractor is covered anyway, the death line is already in the cap, and the warranty can wait.

Disclaimer: Checkory provides AI support, not legal advice. Consult a qualified lawyer for binding decisions.

Why mark this sentence as a responsibility share?

Mark clause 9.2 as a share of responsibility for the same loss. If another person cannot pay, the unpaid part stays with the client. The words follow a section 2(1) split under the Civil Liability (Contribution) Act 1978.

In West [2014] EWCA Civ 316, the court assessed the sum in the same way as 1978 Act section 2(1), and ignored ability to pay. The insolvency risk moves to the client. Apex, reviewed 20 August 2026, says the share assumes the others have paid. Hill Dickinson says that without the sentence the employer can recover the whole loss from either consultant. Joint and several wording is a different test, covered in the joint-and-several review. Check clause 9.2. It does not add the unpaid share back.

Which roles does the sentence actually name?

Copy the roles named in clause 9.2 and in Other Consultants. This definition names the architect and the services engineer, so the design-and-build contractor is out. Do not copy names from the project chart.

In Halcrow [2013] CSOH 173, Lord Hodge at paragraphs 42 and 43 refused to read the contractor into Other Consultants. The deeming words stopped at consultants. Halcrow is a Court of Session Outer House decision, so check the words on your page.

West named consultants, contractors and specialists. The Court of Appeal reversed the first-instance reading and included Maurice Armour. Naming contractors puts this contractor in. Clause 9.2 does not, so the contractor stays out. DWF on 13 February 2026 is about Irish law, so do not use its illustration here. Mark a professional-only list.

What makes the two deeming sentences separate marks?

Mark the two deeming sentences separately. One assumes appointments with no liability cap. The other assumes the share was paid even if the other person cannot pay. This draft has neither. Mark both open.

Hill Dickinson splits the qualifications. One assumes no cap on the others. The other deems payment even if they are insolvent or uninsured. The flue-fire percentages are a hypothetical, so leave them out. Section 2(3) does not fill the missing sentences. Add both, or refuse them.

Does a death line in the cap cover this sentence?

Read the death and personal-injury line against clause 9.2. Clause 9.1 says nothing in clause 9.1 limits liability for death or personal injury caused by negligence. Clause 9.2 has no carve-out. Leave the line on clause 9.1.

Section 2(1) of the Unfair Contract Terms Act 1977 bars a term that excludes liability for death or personal injury resulting from negligence. Mark this business appointment under section 2(1). The wider review is the death and personal-injury note. RICS puts the unlimited line on clause 5.1, not clause 5.2. A typical mistake is to treat the clause 9.1 carve-out as covering clause 9.2. West was a consumer appeal under revoked 1999 regulations. For a consumer client, use Consumer Rights Act 2015 section 65.

Where do the money ceiling and the responsibility share sit?

Put clause 9.1 and clause 9.2 on two rows. The £1,000,000 figure is a money ceiling. Clause 9.2 is a share of responsibility. Neither row replaces the other. Do not pick a lower number. This draft does not calculate one.

Apex treats the cap and the share as separate, and funders often strike the share out. The RICS standards page published the England and Wales notes on 7 April 2025, with clause 5.1 kept apart from clause 5.2.

When is the warranty a match, and when is it silent?

Open Schedule 4 and any sub-appointment and mark whether the same roles and deeming sentences are repeated. Schedule 4 has no net-contribution sentence, so it is silent and does not match. Reject a plan to conform it after completion.

DWF says you should mirror the words in the warranty and any sub-appointment. Match Schedule 4, or refuse it. This paper is bespoke, so there is no on/off box. On the RICS England and Wales form, a blank Appendix box means clause 5.2 applies. The RICS notes, May 2022 revised April 2025, say a blank is not off. Use the England and Wales notes. The Scotland notes are a separate edition.

What do you write before the signature meeting?

Before Friday 23 October 2026, redline the roles, both deeming sentences, and the death carve-out on clause 9.2, match Schedule 4 or refuse it, or escalate.

The £1,000,000 cap stays on its own row. Upload both drafts through document analysis and extract clause 9.2, the definition, and Schedule 4. The result is still yours to sign, match, or escalate.