If, during the construction project,
the works do not comply with the contract requirements, the Employer will need
to know what remedies are available against the Contractor. In the case of Morrison’s Associated Companies Ltd. v.
James Rome & Sons Ltd1,
the builder was not found liable in negligence when a building collapsed after
the builder had supported it in accordance with the recognized practice at that
time, the builder acted in a reasonable manner. In another case, P & M Kaye v Hosier and Dickinson2,
it was argued that a Contractor who produces defective work during the course
of the works is not in breach of contract until he hands over the defective
work because, until then, it is open to him to rectify3
his works. The clause 3.18.1 of JCT SBC/Q 2016 provides that where
any work or materials are not in conformity with the contract, the architect
may instruct the removal from the site of such work, materials or goods. It was
held in Surrey Heath Borough Council v.
Lovell Construction Ltd. and Another (1988) B.L.R 25, that where the
Employer claims damages against the Contractor, the Employer is entitled to (a)
to recover in contract for all related losses, except those covered by
insurance and (b) liquidated damages, if no time extension was granted for the
Here, Pig’s Ear owed a duty to carry
out their work in conformity4
to the contract drawings and construction phase plan, it would be necessary to
rectify the works prior to the completion date. Artless must issue an
Pig’s Ear requiring them to reinstate the disabled ramp and fire escape as per
contract drawings. Thereafter, Pig’s Ear will need to rectify the defective
work within a reasonable time. If Artless do not instruct Pig’s Ear or they
fail to reinstate the defective work, the cost of remedying defects not made
good may be deducted from the contract sum.
In the scenario, Artless and Pig’s Ear are at fault
for breach of contract and defective works respectively. The remedies available
to both the parties under the JCT SBC/Q 2016 contract and common law are
adequate to provide relief to the innocent party. However, it is necessary for
Artless and Pig’s Ear to follow the contact provisions to serve notices and further
submit cost and time claims.
Word count for Part B of Coursework: 2160
PART B – ESSAY
evaluate the contractual position regarding variations of works in the JCT
Standard Building Contract with Quantities 2016 edition, touching (among other
things) upon how such variations impact on the employer’s payment obligation
and on provisions of the contract allowing for extensions of time. Comment on
how effective these contractual mechanisms are in practical terms.
constitute variations of works?
The scope of variations is
dealt in Section 5 of the JCT SBC/Q 2016. Under clause 5.1.1, variation may be
defined as the (a) addition, omission or substitution of any work (related to
design, quality or quantity of works), (b) alteration of the type or standard
of any of the materials to be used in the works or (c) removal from the site of
any work executed, or site materials. As provided under clause 5.1.2, variations
will include the imposition by the Employer of obligations or restrictions which
may relate to site access, limitations of working space / time or execution of
the work in any specific order.
Whether an instruction
amounts to a variation will depend on the nature and terms of the contract. It
is noted that there is no obligation on the Employer to pay for work by way of
a variation, even if the Contractor incurs additional costs due to the
impracticable nature of the design. If items that are of necessity within a
building project but have not been specifically itemised in the contract
documents, it will not constitute a variation entitling the contactor to a
payment over and above the contract price. In the case of Williams v. Fitzmaurice6
which involved a lump sum contract to build a house, the specification made
no provision for flooring. The court rejected the Contractor’s claim for the
additional installation costs of the flooring on the basis that the flooring
was necessarily included in the existing contract price.
The variation provision
within the JCT 2016 suite allows the Employer the flexibility to accommodate changes
to the project scope, within the contract time period and agreed (or similar) prices.
In addition, it will ensure that the contract is not frustrated or result in
breach of contract, if it is necessary to alter the agreed contract work.
Employer or Contractor allowed to vary the works?
It is common in construction projects for the design
of the works to be subject to variation as the work progresses. Neither the
Employer nor the Contractor, however, has any implied right under a building
contract to vary the works. In the absence of an express contract provision
authorizing any variation, the Contractor is under no obligation to carry out any
more than the specified contract works. The Employer will be in breach of
contract if it requires the Contractor to omit any part of the work included in
1 (1964) (SLT)
2 (1972) 1 WLR 146
3 It is based on the concept of ‘temporary disconformity’.
4 Clause 2.1 of JCT
5 Clause 2.38.2 of JCT SBC/Q 2016 requires
the architect/contract administrator may “whenever he considers it necessary”
issue instructions requiring such defects etc. to be made good by the Contractor.
6 (1858) 3 H. & N. 844