The new suites of JCT contracts are rolling off the presses, the ink is barely dry and already Helen Garthwaite (24 June, page 58) is wanting to amend the forms.
The reason that the “standard” forms are the right approach is that they set out good contract practices derived from consensus across all sectors of the industry. They give a fair balance of risk, breed familiarity of terms and are widely understood through interpretation in the courts.
Garthwaite’s comparisons made between the Intermediate Building Contract With Contractors Design (ICD) and the Major Projects Form (MPF) are wholly inappropriate. The MPF is aimed at the high end of the market. If you tried to procure your £250m shopping centre on an ICD you would be mad.
A quick trip to the inside cover of ICD will tell you that it is not a full design-and-build form; it is a design portion form for works of simple content procured using the basic trades and skills of the industry.
There are no surprises that at this level in the marketplace there is a different level of skill and care for design. The small to medium-sized contractor will not want to take on fitness for purpose or be responsible for the employer's previous design.
Bespoke forms and amendments change the balance of risk to the detriment of the recipient, usually the main contractor and subcontractor. Freedom to contract is their greatest asset, enabling contractors to refuse to sign amended forms. Why should they accept amendments or indeed hybrid forms?
As for publishing programme, it is impossible to have all 56 documents on the bookshop shelves on the same day. There is inevitably a lead time between publication of a new form and its actual usage on a project.
John Riches, managing director, Henry Cooper Consultants and member of the JCT drafting committee
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