Limitations and Pitfalls of Traditional Letters of Appointment

And just when you think there are certain things we can rely on, a case comes along and throws the known into the unknown. (I hear a verse of Frozen II beckoning) Well, here we are, not one but two recent cases known as… and dated…. Have both delivered on the principal that… wait for it… a letter of appointment is, as the standard wording sits, limited to the initial dispute. That is to say that, on reflection, the letter of appointment does not allow a surveyor to deal with any further disputes that arise from or resultant of the initial dispute or award.

His Honour Judge Parfitt stated that ‘It is said that once that dispute arising from the notices that led to the 2009 award was determined then the jurisdiction of those existing surveyors came to an end and I agree with that on the facts of this case.’ In the case of K Group Holding Vs Saidco.

In the case of Evans Vs Patterson and Others, His Honour Judge Backhouse announces that ‘Whilst the act contemplates some continuing involvement by the surveyors, whose appointments cannot be rescinded, and whilst the surveyors can make successive awards, the Act does not provide the Surveyors in terms with continuous and ongoing jurisdiction to determine any disputes which may arise. I consider that Arthur is wrong to the extent that he contended otherwise.’

SHOCK HORROR… That being the case, we can no longer offer on-going protection to our appointing owners should any acclaimed damages arise as a result of the works! Or rather we cannot assume a continued right to resolve on-going disputes or to deal with any changes in design, at every avenue we must, in effect be reappointed.

These cases have not been tested solely on this point however and so further clarity is going to be necessary. It may of course change again with developing cases, but for the time being, we can no longer assume an on-going role. 

In order to avoid the question over any ongoing involvement I would therefore suggest that from this day forward, appointment is made in writing for any on-going issues, a simple email or letter stating that the appointing owner is happy for you to continue with your role, should, in principal suffice. All new instructions may benefit from an update to the standard letter of appointment template, ensuring that not only does the appointment relate to the initial dispute BUT also includes for ‘any other dispute arising from or relating to the works’.

Pause for thought and perhaps reflection of our overall jurisdiction. We should not take for granted what we are entitled to do but always look to the Act to support and justify our actions, always.