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Suggested additional collateral contract between the Employer and the Engineering Consultants

The engineering consultants entering into a domestic contract with the chief designer means there is no contractual relationship between the client and the engineering consultants.  Thus the client could only sue the consultants in tort and this would require proving that a duty of care was owed.

Therefore a collateral contract between the client and the consultants will allow the client to directly sue them for any breach of the warranties conditions - commonly including promises on the part of the consultants to achieve the standard of design and workmanship as specified by the client.

Again, this additional collateral contract may not stop the contractor turning to the client to complain and for compensation when the consultants do not fulfil their necessary obligations, but nevertheless the client will then be in a position to seek compensation from the consultants and subsequently pay this to the contractors.  The client's objective could be deemed as being achieved in part therefore - the contractor will still approach the client, but in turn the client will be able to fulfil the contractor's claim.

Clearly then, where there is reliance upon advice in exchange for some benefit (as between the consultants and the contractors here), then a collateral relationship may arise involving separate issues of liability.  Parties who are not in a direct relationship under the main contract can become involved and it's existence can often be inferred from surrounding facts and circumstances.

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