The JCT Minor Works Building Contracts 2016, 5th Edition

Preface to the fifth edition x

Abbreviations xii

1 Introduction 1

1.1 Some general things about contracts 1

1.2 Some background to MW and MWD 4

1.3 When to use MW and MWD 5

1.4 How to use 7

1.5 What is the contract? 9

1.6 How to complete the contract form 10

1.7 Priority of documents 16

1.8 Inconsistencies and divergences 16

1.9 Custody and copies 19

1.10 Limits to use 20

1.11 Notices, time and the law 20

1.12 Common problems 21

2 Some basics 24

2.1 Works 24

2.2 Drawings 24

2.3 Copyright 25

2.4 Specification 25

2.5 Schedules 25

2.6 Privity of contract and third party rights 26

2.7 Base date 26

2.8 Common problems 26

3 Things you must know 29

3.1 The Housing Grants, Construction and Regeneration Act 1996 (as amended) 29

3.2 Express and implied terms 31

3.3 Limitation periods 32

3.4 Letters of intent 34

3.5 Quantum meruit 35

3.6 Common problems 36

4 Architect’s powers and duties 37

4.1 Authority and duties 37

4.2 Duty to act fairly 43

4.3 An architect in a local authority or similar 44

4.4 Express provisions of the contract 45

4.5 Common problems 50

5 Contractor’s powers and duties 51

5.1 Contractor’s obligations: express and implied 51

5.2 Basic principles 51

5.3 Carrying out the Works 59

5.4 Workmanship and materials 61

5.5 Statutory obligations 63

5.6 Contractor’s representative 63

5.7 Compliance with architect’s instructions 64

5.8 Suspension of obligations 64

5.9 Common problems 65

6 Employer’s powers and duties 67

6.1 Powers and duties: in the contract and elsewhere 67

6.2 Rights under MW and MWD 72

6.3 Other rights 73

6.4 Duties under MW and MWD 73

6.5 Retention 76

6.6 Other duties 76

6.7 Common problems 77

7 Quantity surveyor 78

7.1 Appointment 78

7.2 Duties 79

7.3 Responsibilities 81

7.4 Common problems 82

8 Clerk of works 85

8.1 Appointment 85

8.2 Duties 87

8.3 Responsibilities 90

8.4 Common problems 90

9 Sub]contractors and suppliers 92

9.1 General 92

9.2 Differences between assignment and sub]contracting 92

9.3 Assignment 92

9.4 Sub]contracting 93

9.5 Nominated subcontractors 94

9.6 Common problems 96

10 Statutory matters and work outside the contract 98

10.1 Statutory authorities 98

10.2 Works not forming part of the contract 100

10.3 Common problems 101

11 Insurance 103

11.1 Important 103

11.2 Injury to or death of persons 104

11.3 Damage to property 105

11.4 Insurance of the Works 106

11.5 Evidence of insurance 108

11.6 Loss or damage 109

11.7 Common problems 110

12 Possession of the site 111

12.1 Important points 111

12.2 Date for possession 112

12.3 Failure to give possession 112

12.4 Common problems 114

13 Extension of time 116

13.1 Why necessary? 116

13.2 Extension of time 117

13.3 Reasons 119

13.4 Failure to notify delay 120

13.5 Does an extension of time entitle the contractor to any money? 121

13.6 Common problems 121

14 Liquidated damages 123

14.1 What are liquidated damages? 123

14.2 Liquidated damages or penalty? 124

14.3 Procedure 125

14.4 Common problems 126

15 Financial claims 127

15.1 General 127

15.2 Dealing with loss and/or expense 128

15.3 Types of claims 130

15.4 Common problems 132

16 Architect’s instructions 134

16.1 Architect’s instructions 134

16.2 Contractor’s objection 138

16.3 Specific instructions 139

16.4 Other instructions which will be empowered 140

16.5 Common problems 141

17 Variations 143

17.1 Variations 143

17.2 Valuation 145

17.3 Provisional sums 146

17.4 Common problems 147

18 Payment 149

18.1 Important to read this first 149

18.2 Contract Sum 150

18.3 Interim certificates 153

18.4 Final certificate 157

18.5 Effect of certificate 161

18.6 Failure to pay 161

18.7 Retention 161

18.8 Common problems 162

19 Practical completion 164

19.1 Practical completion 164

19.2 The contract says 164

19.3 Consequences of practical completion 167

19.4 Common problems 167

20 Defects liability 169

20.1 During construction 169

20.2 During the rectification period 169

20.3 Defects, shrinkages and other faults 170

20.4 Frost 172

20.5 Procedure 172

20.6 Making Good 174

20.7 Certificate of making good 176

20.8 Common problems 177

21 Termination 178

21.1 Preliminary thoughts 178

21.2 If no termination in the contract 179

21.3 Termination by the employer 180

21.4 Consequences of employer termination 186

21.5 Termination by the contractor 187

21.6 Consequences of contractor termination 194

21.7 Termination by either employer or contractor 194

21.8 Termination after loss or damage to existing structures 195

21.9 Reinstatement 195

21.10 Common problems 195

22 Contractor’s designed portion (CDP) 198

22.1 Principles 198

22.2 Contractor’s obligations 198

22.3 Inconsistences and divergences 200

22.4 Variations 201

22.5 Other matters 201

22.6 Common problems 202

23 Dispute resolution procedures 203

23.1 General 203

23.2 Choice 203

23.3 The Construction Act 1996 205

23.4 Adjudication in general 205

23.5 Pros and cons 206

23.6 Adjudication in detail 208

24.7 Arbitration 217

23.8 Legal proceedings (litigation) 222

23.9 Mediation 223

23.10 Common problems 223

Notes and references 224

Table of cases 234

Clause number index to text 000

Subject index 000

David Chappell BA (Hons Arch) MA(Arch) MA(Law) PhD RIBA is an architect who has worked in both the public and private sectors, as well as in contract administration and as a lecturer in construction law and contracts procedure. He was Professor of Architectural Practice and Management Research at The Queens University of Belfast and Visiting Professor of Practice Management and Law at the University of Central England in Birmingham. Since 1989, he has practiced as a contracts consultant and adjudicator, both for a large consultancy and for the last twenty-three years as director of his own consultancy. He is an experienced adjudicator and the author of many books for the construction industry.