How to Test Whether a Result Obligation Overrides a Skill-and-Care Standard

On an English-law consultant appointment, test whether result words outside the skill-and-care sentence govern the stated criterion. Read the care sentence and the performance schedule as one bargain. Mark fit for purpose, shall ensure, shall achieve, and a measured figure even where the word purpose is absent. Leave cover blank until the broker reads this schedule.

The headline does not decide. Calling the schedule a specification does not remove it from the bargain. This is for the courts of England and Wales.

Work in this order: one bargain, the result words, the overriding sentence, present or absent, the negligence split, cover left blank, and downstream seen or unseen.

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

Why read the care sentence and the performance schedule as one bargain?

Section 13 of the Supply of Goods and Services Act 1982 implies reasonable care and skill where the supplier acts in the course of a business. That implied term is not a promise of a result.

HCR Law, 20 March 2026, says section 13 is not strict liability and does not guarantee a result. An attempt to exclude the implied term is subject to the reasonableness test in the Unfair Contract Terms Act 1977. Section 16(2) says an express term does not negative the implied term unless inconsistent with it. Section 16(3)(a) preserves any stricter duty. A typical mistake is to stop once a note calls the schedule a specification.

Why mark result words that omit the word purpose?

Mark result words wherever they sit, including a stated criterion or a measured figure that never uses the word purpose.

FIDIC Briefing Note 4 (January 2024) says a buried fitness-for-purpose line can override the care standard, and the client need not prove negligence. The note is guidance, not an England and Wales judgment. Apex, last reviewed 20 July 2026, lists ensure, achieve, guarantee, suitable, and fit for purpose.

In [2017] UKSC 59, 3 August 2017, Osborne Clarke records paragraph 3.2.2.2(ii): “The design of the foundations shall ensure a lifetime of 20 years in every aspect without planned replacement.” The Court of Appeal called it too slender a thread. The Supreme Court disagreed. Paragraph 30 required a design expected to last 20 years, not a guarantee they would last, and the foundations failed on both readings. Pinsent Masons (22 April 2024) records that this wording survived the skill-and-care sentence. That 20-year line is not the 25 years in Schedule 2.

When is an overriding sentence actually on the page?

Mark whether the overriding sentence is present or absent. The care sentence is not that sentence when the notwithstanding words are missing.

Beale & Co quotes Lendlease v AECOM [2023] EWHC 2620: “Notwithstanding any other clause in this Agreement or the Principal Agreement or term implied by statute or common law, the Consultant shall not be construed to owe any greater duty in relation to this Agreement than the use of necessary reasonable skill, care and diligence pursuant to this Clause 4.01.” Højgaard and Martlet [2022] EWHC 1813 (TCC) did not apply, as there was no competing specified criterion.

CMS, 13 February 2015, on Haase [2015] EWHC 152 (TCC): skill and care was paramount, and a non-conflicting design duty is still met with reasonable skill and care. CMS cites only the 2014 judgment. Reed Smith, 16 May 2024, describes JCT Design and Build 2024 clause 2.17 as a contractor clause that excludes fitness for purpose. NEC Option X15 is a works contract. A blank box in the RICS England and Wales notes means no design responsibility, and none of the three is this appointment.

Why split the negligence question by sentence?

Split the question by sentence. On the care sentence the client must show the consultant fell below the standard of a competent professional. On a stated criterion, ask whether a miss can be argued without that finding.

The CIC briefing of January 2023 says fitness for purpose is strict and negligence need not be proved. A strict compliance promise needs no negligence finding; a skill-and-care check does. In Costain Ltd v Charles Haswell & Partners Ltd [2009] EWHC B25 (TCC), clause 7.2 was a skill-and-care duty and clause 7.4 was a strict promise that the designed works meet the specification.

On Osborne Clarke’s account, the Supreme Court found a breach despite due care and compliance with J101.

Why leave professional-indemnity cover blank?

Leave professional-indemnity cover blank until the broker reads this schedule against this wording.

CIC says a result can be breached with no negligence, so it may sit outside cover. Whether the whole contract is outside cover is for the broker. Apex’s breach-of-contract page says many wordings exclude that increment, with a write-back. A fitness-for-purpose claim may fall outside skill-and-care cover. None of these pages is this policy.

Ask whether this wording is inside cover, an excluded increment, or a write-back. The policy schedule is a different checklist: the vendor insurance requirements review.

Why mark the downstream appointment seen or unseen?

Mark the downstream appointment seen or unseen. Downstream care words are not the upstream result. If it is missing, mark it unseen, and do not treat “the same thing” as the appointment.

If a result is kept, FIDIC says the subconsultant should carry the same standard. Pinsent Masons, 11 November 2022, says define the purpose and pass it down. If no purpose is defined, a works contract can fall back to ordinary purposes. That fallback is not this appointment.

What do you do once the six marks are on the log?

Before Friday 23 October 2026, choose one of the three moves below.

After the log, review clause 4.1 and Schedule 2 in document analysis. Scope, fees, and the liability cap are a separate review: the professional services agreement review.