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In many ways, overcoming a contractor or consultant’s natural caution and achieving an enforceable fitness for purpose obligation is the Holy Grail for employers. Cases stretching back decades discuss what fitness for purpose actually means and illustrate parties’ attempts to incorporate this standard of care in their contracts.The important point about fitness for purpose is that where the contract is silent, reasonable skill and care is implied. There may only be a breach of the reasonable skill and care requirement if negligence can be established. Fitness for purpose (implied or express) on the other hand, is an absolute obligation. This is why such clauses also raise tricky questions of whether a professional indemnity insurance policy will respond to a breach of contract where fitness for purpose is required (a point sometimes raised by parties to oppose the inclusion of the higher duty of care) and why many cases on this subject end up in court.Bearing in mind the possible impact of such an absolute standard, another issue in relation to fitness for purpose was discussed recently by the Court of Appeal in MT Hojgaard A/S vs Eon Climate and Renewables. This concerned what would happen if an obligation amounting to fitness for purpose in a technical schedule was inconsistent with other requirements for the exercise of professional skill and adherence to good industry practice which were contained elsewhere in the contract documents.Make sure that a clear agreement is reached about the standards of care required. Remember that sneaky drafting rarely produces good resultsThe facts were as follows: the contract between Hojgaard and Eon related to the fabrication and installation of foundations for offshore wind turbines. Defects arose due to the contractor adopting an internationally recognised standard which contained an error. This error was not known about in the industry at the time. A technical schedule which was expressed to be part of the contract documents required Hojgaard to provide foundations with a service life of 20 years. At the trial to determine liability for remedial works, it was found that, although not negligent, Hojgaard were liable because the design of the foundations was not fit for purpose.The decision was overturned on appeal.The Court of Appeal found that other less onerous provisions in the requirements and specifications amounted to a warranty not that the foundations would be functional for 20 years, but that they would have a design (as opposed to a service) life of 20 years. The design life warranty anticipated that the structures would only probably be viable for 20 years, which would seem reasonable, given the variable conditions found offshore. This was different from a fitness for purpose condition which guaranteed complete functionality for the same period. The court found that the fitness for purpose obligation in the technical schedule was to be construed subject to the other general obligations.So what is there to be learned from a case which does not make new law, but certainly is a good reminder that (particularly in relation to fitness for purpose) we all have to be on the ball when putting our contracts together?Firstly, make sure that a clear agreement is reached about the standards of care required. Remember that sneaky drafting rarely produces good results. If you are the employer, be prepared for your contractor to price accordingly.Secondly, consistency is key. All your contract documents, including the employer’s requirements and technical documents, should say the same thing, or if it is intended that different obligations will have different standards of care, this is obvious. Thirdly, if there is a possibility of conflicting obligations which cannot be resolved in advance, check the position of the relevant documents in the hierarchy of contract documents.Finally, just before you sign on the dotted line, take the time to have one more look at the whole contract, not just the bit at the front. Much better to know up front than be taken by surprise later.Stephanie Canham is national head of projects and construction at law firm Trowers & Hamlins
Access to justice has been dealt another blow following the closure of a north-west London law centre which opened its doors nearly five decades ago.The Law Centres Network confirmed on Friday that Brent Community Law Centre has closed: ‘Like many charities, it has been significantly weakened by unrelenting public funding cuts while demand for its help has grown.’ The network says an orderly closure is underway, and clients and partners have been informed.According to the Charities Commission website, in the financial year ending 31 March 2019, the law centre had an income of £287,852 but it spent £333,993. Its 2018/19 annual report states that the law centre received its core funding from Brent Council via a contract with Citizens Advice Brent. The centre also provided specialist advice to clients referred by other local advice agencies. Average weekly number of staff was 8.5 (expressed as full-time equivalents). The centre was ‘in the process of restructuring its services and its finances to create a more sustainable model’.Councillor Ketan Sheth, chair of Brent Council’s community and wellbeing scrutiny committee, said the law centre was a ‘much used and appreciated lifeline for many, many Brent residents over the past decades’.Brent Council’s website states that the public authority no longer has direct access to the law centre for advice due to funding changes. People who live, work or study in the borough are told to visit Citizens Advice where they will be assessed face-to-face. If Citizens Advice is unable to help, individuals will be referred to another law centre or organisation. Alternatively, the Brent Advice Matters website has information on social welfare law, housing, immigration, work, money, health and benefits.Nimrod Ben-Cnaan, head of policy and profile at the Law Centres Network, said his organisation was ‘already exploring ways’ to re-establish a law centre service in Brent ‘and hope to do so before long’.
Wrestling icon Saori Yoshida said Tuesday she will close the curtain on her decorated career.“I have decided to end my 33-year career as a competitive wrestler,” Yoshida, a three-time Olympic champion, said on Twitter. “I have been able to do my best as an active wrestler because of the cheers and support from many people.”The 36-year-old topped the podium in the women’s 55-kg division at three straight Summer Games between 2004 and 2012, but fell short of a fourth straight gold medal at the 2016 Rio de Janeiro Games, settling for silver in the 53-kg division.She is a 13-time world champion and also won four straight golds at the Asian Games between 2002 and 2014.Yoshida plans to hold a news conference in Tokyo on Thursday.“I want to show my appreciation and announce my retirement in front of everybody,” she said.Yoshida began participating in the sport as a 3-year-old in Mie Prefecture under her father, Eikatsu, who ran a wrestling school. She won her maiden world championship in 2002 when she was 20 and went on to claim 13 consecutive titles.Between 2001 and 2008, Yoshida won 119 consecutive matches.She received the People’s Honor Award in 2012, after she surpassed Alexander Karelin’s number of consecutive world titles. The Russian legend had won three Olympic gold medals and nine world championships in the men’s 130-kg class between 1988 and 1999. GET THE BEST OF THE JAPAN TIMES Saori Yoshida | KYODO IN FIVE EASY PIECES WITH TAKE 5 KEYWORDS olympics, Saori Yoshida, wrestling RELATED PHOTOS