The benefit of experience

As a junior solicitor I had to endure endless comments that: “If you have been in this industry as long as I have, you would know that …”. These came largely from male (always) quantity surveyors (usually). As a result I am disinclined to believe that old heads are always wiser. But there are some issues under JCT forms, which as a junior lawyer I did not understand but which are now rather clearer to me.

There is a right for the employer to instruct postponement of the works - so why is there no similar right to instruct the acceleration of the works?

JCT forms do now include reference to acceleration but they only allow acceleration by agreement - Clause 19 of JCT Major Project Construction Contract 2011 requires the contractor to make proposals and, if the employer accepts them, he may issue an instruction identifying the agreed adjustment to the completion date and the agreed additional cost.

With the benefit of experience, I now realise that a unilateral right to instruct acceleration under the JCT forms would be impractical and potentially very unfair. It could allow the employer unilaterally to impose on the contractor an obligation that he simply cannot deliver - either because it is impossible or because he does not have sufficient available resources. In these circumstances, how could the contractor be penalised by deduction of liquidated and ascertained damages for breach of contract when he never agreed to the dates in the first place?

Having now seen some of the catastrophic effects of fires on construction sites and knowing how difficult it is to prove who was responsible for them, i know that there is no advantage in penalising a contractor with liquidated damages

The definition of “change” under some of the JCT forms includes imposition of obligations or restrictions in regard to “the execution or completion of the work in any specific order”, which does give the employer the right to interfere with progress of the works, but this is subject to the contractor’s right to make “reasonable objection”. Why should the contractor be able to object?

Those amending JCT forms often delete the right but how would that play out in an adjudication in circumstances where the employer instructed the contractor to do something that was impossible or impractical or unsafe? While the valuation of the change could deal with time and cost consequences, “unreasonable” instructions by the employer are not likely to be enforced with much enthusiasm, whatever the contract says …

Why should the contractor receive an extension of time for fire or an escape of water or another specified peril caused by his negligence or default?

Having now seen some of the catastrophic effects of fires on construction sites and knowing how difficult it is to prove who was responsible for them, I know that there is no advantage in penalising a contractor who has to re-build a project with liquidated damages as well. “All risks” policies can easily be extended to cover liquidated damages flowing from the occurrence of a specified peril.

Although I have to admit that it is less obvious to me why, in the case of a fire that damages existing structures, the contractor should have the right to terminate the building contract. Surely this just gives him the ability to walk away from a loss-making contract?

Why do JCT forms provide that the employer may only allow other contractors on the site or take a partial possession with the contractor’s consent?

Isn’t this just to protect the employer from himself? If the employer’s contractors enter the site before practical completion and delay or disrupt the contractor, he will be entitled to an extension of time and loss and/or expense. It is also likely that such access may cause damage to the works, with all sorts of problems in identifying who did what, to whom, and when. It is not a sensible course of action unless tightly regulated.

But there are still loads of things I still do not understand - why for example do the terms of contract override everything else when most of the industry never reads them? Why does the contractor have to have exclusive possession of the site? Why do the other JCT forms not follow the MPCC in properly reflecting the requirements of developers with third party funders, purchasers and tenants - even if only as optional clauses?

Any quantity surveyors out there feel like explaining?!

Ann Minogue is a partner in Macfarlanes