Construction Law: JCT 2016 Contract Analysis and Implications

This report provides a detailed analysis of construction law, specifically focusing on the JCT 2016 contract. It examines the obligations of both employers and contractors, including the provision of site possession, administration, and information by the employer, and the duty of the contractor to perfor...Read More

Running head: CONSTRUCTION LAW
Construction law
Name of the Student
Name of the University
Author Note

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Question A
The JCT suit 2016 imposes an obligation of the both the employer and the contractor to
comply with their legal duties. In the given scenario the contractor is Irn Construction PLC and
the employer is U-turn investments. According to the facts of the given situation revised
construction drawings have been provided by the architect of the employer and subsequently
because of such actions the contractor was not able to proceed with the construction project. This
is because the foundation of the project had been laid by the contractor in accordance to the
original document. The new drawing requires a completely new foundation and along with other
discrepancies the contractor are expected to delay the work by a total of 25 weeks. The
limitations in relation to the progress of work are likely to trigger delay in the project and in
addition would also result in the increase in the overall cost.
It is a primary obligation of an employer under the JCT 2016 to provide the possession of
the site to the contractor. In addition under the JCT 2016 the employer also has the duty to
deploy appropriate administration in relation to the site along with providing necessary and
relevant information and giving appropriate instructions. On the other hand the duty with the
JCT 2016 imposes on the primary contractor include the responsibility of proceed with the work
in accordance to the terms of the construction contract and also to deploy due skill and diligence
with respect to the quality of work in the same way which a builder having ordinary competence
would have done. In case any of the parties to the construction contract are not able to comply
with the obligations imposed by the JCT 2016 it would lead to the breach of contract. The
common law rules as provided by the case of Addis v Gramophone1 would be applicable if the
breach of contract has been done by any of the parties and the aggrieved party would be entitled
1 [1909] AC 488

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to remedies in form of compensation and damages. Damages are only provided to the aggrieved
party for the loss arising out of contractual breach and to an extent which would restore the
position of the party it would have been if the contract was not violated. It had been provided
through the JCT 2016 that in case an act or omission committed on the part of the employer
hampers the ability of the contractor to be able to complete the construction project on time, the
contractor would be entitled to additional cost and time in relation the project from the employer.
It is the duty of the contractor once they have been provided by the possession of the
work site by the employers to appropriately initiate the construction project on time and to
complete the project through continuously deploying skill and diligence2. In addition a duty has
been imposed on the employer assist the contractor in completing the work and if it is found that
the acts of the employer was committed in a manner which made in impossible or difficult for
the contractor to continue with the progress of the work, than time being the essence of the
contract cannot be relied upon by the employer in legal proceedings against the contractor. For
instance where additional work or any contractual alternations have been initiated by the
employer than it cannot be claimed by the employer that the contractor should complete the work
in the originally provided time scale.
According to the facts of the given situation where there has been alternation in the terms
of the original contract by the employer it is the duty of the contractor to evaluate whether such
alteration caused by the employer would be constituted as a significant situation leading to the
not completion of work in time long with incurring additional cost. In addition the contractor
also have the responsibility of analyzing whether such alterations by the employer is a
fundamental change (alternation in the actual nature of the original contract which makes it a
2 London Borough of Hounslow v. Twickenham Garden Developments Ltd. (1970) 3 All E.R. 326

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totally new contract) to the contract and thus make it impossible for the contractor to carry on
with the work. In the given situation it has been provided that the contractor wants to carry on
with the altered work with the expectations that the employer would be providing them the
necessary benefits in relation to the additional cost incurred and delay cause to the project
according to the provisions of the JCT. however for the purpose of safeguarding its position it is
the duty of the contractor to abide by the provisions of the contract. The clause 2.28 of the JCT
provides extension of time to the contractor to deal with an alternation which may be considered
as a “relevant event”3.
In the given situation it is the duty of the contractor to provide a notice with respect to the
time and variation issues so that they cannot be time barred. It is the duty of the contractor to
provide a notice with respect to each delay to the employer. It is the duty of the contractor to
provide notice in situation where not only the contractor has knowledge that the work would be
delayed but when in situation where the wok is likely to be delayed as per clause 2.27.1 of the
JCT4. The contractor has the duty to provide notice Forthwith which have been defined as
without any delay in time5 and as soon as it is reasonable to do6. The notice has to incorporate
information about why it is considered by the contractor that a relevant event would be
constituted by the discrepancies between contractual documents and the revised construction
design. The likely impact of the event leading to the change in time and cost must also be a part
of the notice. The material circumstances and the causes of delay must both be stated in the
notice. Thing such as the proposed order of work, progress and any other thing which may affect
the work must be considered as material circumstances. In case such notice is not provided by
3 JCT SBC/Q 2016 Clause 2.28
4 JCT SBC/Q 2016 Clause 2.27.1
5 Roberts v Brett (1865) 11 HLC 337
6 London Borough of Hillingdon v Cutler [1967] 2 All ER 361.

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the contractor it can be argued by the employer that the contractor under the clause 2.28.6.1 did
not utilize best judgment to prevent the delay7.
It is the obligation of the contractor under clause 2.27.2 of the JCT according to which he
has to provide details about the consequences of the every relevant event. It is the duty of the
contractor to study every relevant event individually8. It is also the duty if the contract in case no
other relevant event has taken place to inform the architects about the cost and time required
completing the work after analyzing all the relevant events. Adequate data has to be supplied to
the architect by the contractor so that they can come to a conclusion.
Answer B
The duty of the architect to develop an opinion in relation to the time extension does not
initiate until and unless the notice as discussed above in relation to the estimation of the delay
has been provided by the contractor according to the provisions of clause 2.28.1 of the JCT 9. it is
the duty of the architect to form an opinion in relation to two important matters, firstly, whether
the causes notified by the contractor constitute a relevant event and secondly whether the
relevant event is likely to delay the work beyond the prescribed deadline. A decision has to be
made by the architecture in response to the claim of the contractor as soon as reasonably
possible. Each relevant event caused by the employer has to be apportioned specific time by the
architect. It is the duty of the architect to address and solve the problem based on the terms of the
contract in an amicable manner.
7 JCT SBC/Q 2016 Clause 2.28.6.1
8 JCT SBC/Q 2016 Clause 2.27.2
9 JCT SBC/Q 2016 Clause 2.28.1

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In addition, it is the duty of the architects of the employer to notify the contractors
whether an extension have been provided or not according to the provisions of clause 2.28.2 of
the JCT. the architect is prohibited from not informing the contractor if an extension has not been
given to them after consideration10. The notification in relation to the non approval of the
deadline extension has to be provided to the contractor by the architect in writing. It is upon the
discretion of the architect to decide that whether the circumstances lead to a relevant event or not
or whether such events would lead to a delay in work. An extension with respect to time has to
be provided by the architecture under clause 2.28.3 of the JCT. while making an extension and
fixing a new date of completion two things have to be stated by the architect firstly the amount of
time which has been extended and secondly the deduction in time which arises out of every
relevant omission11.
The court who have the right to determine in the basis of both expressed and implied
terms of the contract that how the matter should be proceeded if there is a failure on the part of
the architect to do so. The court may not only make a specific action or an injunction order or an
order to entitle the aggrieved party of damages incurred by them.
Answer c
It is the right of the contractor to complete the work in a reasonable time in case
alterations have been made by the employer with respect to the original contract which makes it
difficult for the contractor to complete the work12. The instruction of the architect in relation to
discrepancies among the contractual documents as well as any default, prevention or
10 JCT SBC/Q 2016 Clause 2.28.2
11 JCT SBC/Q 2016 Clause 2.28.3
12 Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board [1973] 2 All E.R. 260 and Peak
Construction (Liverpool) Ltd. v. McKinney Foundations Ltd. (1970) 1 B.L.R. 111.

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impediments in form of an act or an omission on the part of the employer are included in the
relevant events through which rights are conferred on the contractor to extend the time scale as
provided by provision 2.29.2.1 of the JCT13. In case application has been made in writing by the
contractor to the architects it is the duty of the architect to provide such information to the
contractor within a reasonable period of time according to clause 2.12.2 of the JCT. the implied
right in relation to the variation of work with respect to construction projects have been provided
to neither the employer nor the contractor. Provisions have been invariably provided by the JCT
SBC/Q 2016 which gives the right to the employer to alter work subjected to the provided
instructions along with making the contractor to carry on with the work or stop the work
according to the instructions14. The nature of the terms of the contract would be used to
determine whether the variation would result out of instructions provided by the employer. As
per clause 3.10 of the JCT SBC/Q 2016 it is the duty of the contractor to act in accordance with
all the directors provided to them by the architect and an order to make a variation can be
provided by the architect under clause 3.14.1 of the JCT15.
According to the case of McAlpine Humberoak Ltd. v. McDermott International Inc with
respect to a construction contract variation by the employer cannot be made if it is related to a
fundamental change in the contract and excluding large quantities of work and employer another
contractor to carry on with such work. The situation would lead to the beach of the contract16.
A detailed mechanism of valuation is set out by the JCT SBC/Q 2016 which enables
employers to pay for varied works under clause 5.2. It is an amount which both the contractor
13 JCT SBC/Q 2016 Clause 2.29.2.1
14 Williams v. Fitzmaurice (1858) 3 H. & N. 844
15 JCT SBC/Q 2016 Clause 3.14.1
16 McAlpine Humberoak Ltd. v. McDermott International Inc. (No. 2) (1992) 58 B.L.R. 61 and Commissioner for
Main Roads v. Reed & Stuart Pty. Ltd. (1980) 12 B.L.R. 55.

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and employer agree. The provisions for estimating the amount of time to be extended are
provided in clauses 5.6-5.10 of the JCT. clauses 5.6 to 5.10 of the JCT provide the “variation
rules” which make provisions among other things in circumstances where substitute or additional
work can be measured.
In case there is such a significant change in the parameter of the contract that its basic
terms are no longer applicable it results in a fundamental change which is not in accordance to
the primary intent of the contracting parties17. Such actions are indentified by laws as a violation
of contractual terms and subsequently result in damages. The damages are based on the
principles discussed above in the case of Addis v Gramphone, where the aggrieved parties’
initial position is intended to be restored as if it did not enter unto a contract. The dispute can
also be solved through the use of Alternative Dispute Resolution Methods such as Negotiation,
Arbitration, Conciliation and Mediation.
17 Aragona Constr. Co. v. United States, 165 Ct. Cl. 382 (1964) and C. Norman Peterson Co. v. Container Corp. of
Am., 218 Cal. Rptr. 592 (Ct. App. 1985)

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Bibliography
Adriaanse, Mr John. Construction contract law. Palgrave Macmillan, 2016.
Aragona Constr. Co. v. United States, 165 Ct. Cl. 382 (1964) and C. Norman Peterson Co. v.
Container Corp. of Am., 218 Cal. Rptr. 592 (Ct. App. 1985)
Brook, Martin. Estimating and tendering for construction work. Taylor & Francis, 2016.
London Borough of Hillingdon v Cutler [1967] 2 All ER 361.
London Borough of Hounslow v. Twickenham Garden Developments Ltd. (1970) 3 All E.R.
326
McAlpine Humberoak Ltd. v. McDermott International Inc. (No. 2) (1992) 58 B.L.R. 61 and
Commissioner for Main Roads v. Reed & Stuart Pty. Ltd. (1980) 12 B.L.R. 55.
Roberts v Brett (1865) 11 HLC 337
Ter Haar, Roger, Marshall Levine, and Anna Laney. Construction insurance and UK
construction contracts. CRC Press, 2016.
Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board [1973] 2 All E.R.
260 and Peak Construction (Liverpool) Ltd. v. McKinney Foundations Ltd. (1970) 1 B.L.R. 111.
Williams v. Fitzmaurice (1858) 3 H. & N. 844

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