Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation in its Decision of 13.02.2024 N 305-ES23-18507 came to the conclusion that the contractor-consultant as a general rule does not share with the customer the risk of failure to achieve the result for which the contract is concluded.

In this regard, for example, a tax consultant cannot literally be held liable for the results of the tax audit of the customer and the assessment of his financial and economic activities, which in the future will be given by the tax authority, even if the advice (methods) received from the consultant were taken into account by the customer in the formation of its accounting policy.

In the case of a dispute about the quality of consulting services is required to assess the sufficiency of the efforts made by the performer – whether he acted with such care and professionalism, with which under the circumstances of the case would act any reasonable consultant seeking to benefit the customer.

The Court pointed out that the degree of care and professionalism required of a consultant in the performance of a contract cannot be the same for a contractor whose qualifications and experience correspond to an ordinary degree of skill and ability and for a consultant who positions himself as a highly qualified professional with experience in solving complex problems, the cost of whose services is therefore usually higher.

If the special knowledge and skills were not applied by a consultant who did not possess them, and the client was aware of this, it would not be fair to hold the consultant liable for the client’s problems. At the same time, if the required knowledge and skills were not applied by a highly professional consultant, the principle of fairness (Article 393.5 of the Civil Code of the Russian Federation) will not be met by applying to such a person a lower standard of quality of services rendered by him for the purposes of determining the measure of his property liability.

The court’s findings also apply where there is a clause which excludes or limits the liability of the consultant. This contractual clause is permissible and is not in itself contrary to the law. However, it cannot be invoked if the actions performed were so reproachable (unprofessional) that they affected the very essence of the obligation to be performed and rendered the conclusion of the contract useless for the client, for example, if the document developed by the consultant turned out to be knowingly unsuitable.

Court practice