Section A

Legal Problem

Your friend, Jess, comes to see you. Jess has recently been engaged on a
construction project as the client’s representative. Jess has been working
outside of the UK for some time and are looking for some advice on some
of the key statutory requirements which they need to take account of. In
particular, the client’s document management systems are poor, so their
record keeping is not as good as it should be. Jess has just been engaged
so is still working things out.

Jess is particular keen to ensure that she is up to speed on (i) the health
and safety position and (ii) on the payment procedures. The contract
governing the works is the JCT Standard form of Building contract,
without quantities, 2011 edition unamended (English law applies).

Jess is comfortable in terms of simply reading through the relevant

regulations and the contract but would find it helpful if you could explain
the position to her on these two points and identify the key issues she
should be aware of. In particular, she is keen to ensure that (i) she is well
aware of, and understands, the arrangements for health and safety for
the project and (ii) understands how the payment process is set up. She
understands that there might be some issues with the service of notices –
and is keen to try and ensure that there is a proper grip on things at the
project level.In particular, she wonders whether she could try and vary
the provisions to try and shorten the period for the service of Pay Less
Notices – and what the consequence of that might be.

Explain the position to Jess as best as you can in terms of the

health and safety position and the payment procedures. If you
have any advice on her question about the service of pay less
notices, you should include that.

All answers should be in appropriate detail and include all

relevant references and citations.

Total: 50 Marks
Word count for section A: 1800 to 2,000 words
ANSWER

Issues to be addressed

What are the contractual obligations of Tongue & Groove Fabricators Ltd (‘Tongue &
Groove’) after the discovery of Roman Antiquities under the JCT Standard Building
Contract?

What should be the response of High-Octane Enterprises LLP (‘High-Octane’) in regard to

the position taken by Tongue & Groove in addressing the issue?

Legal position

Fundamentally, the contractor is under legal obligation to conduct the assigned construction
work in acceptable workmanlike manner consistent with the construction phase plans,
contract documents and the relevant statutory requirements.1 After the commencement of
construction work, the contractor may be compelled to comply with certain statutory
provisions that were not anticipated when assuming the assignment. In such scenarios the
contractor must immediately give adequate notice accurately defining the nature of the
divergence that has been caused by the compliance of the relevant statute.2 Further, the
contractor must incorporate suggested amendments to the contract administrator or the
architect for further instructions.

After the reception of the notice, the contract administrator is supposed to issue instructions
within 14 days to the contractor.3 Unless the compliance of the statutory requirement that was
not anticipated directly leads to fundamental modification, the contractor is obligated to
comply at no additional cost of the employer. Nevertheless, significant alterations will be
construed as additional or new instructions that would necessitate the employer to be
subjected to additional costs.4 The contractor will be exempted from liability if he is
instructed to undertake the works in violation of the statutory provision.5 If compliance of the
statutory provision limits the undertaking of the work, the contractor must undertake such
work taking into cognisance the limitation resulting from the compliance of the relevant
statute.6

When it comes to alteration of the completion date there could be a proposed two tier system
where the parties involved may opt for a pre-agreed alteration of the completion date.7
Another viable option is called the relevant omission option based on the nature of the
defined work.8 Additionally, if it becomes imminent that the assignment may not progress at
stipulated time the contractor must without delay notify the contractor of such an eventuality.
Correspondingly, the contractor must outline the reasons behind the delays in completing the
1
Clause 2.1 Joint Contracts Tribunal (JCT) Standard Building Contract with Quantities 2011
2
Clause 2.17 JCT
3
Clause 2.17.2 JCT
4
Clause 2.17 par 2(1) JCT
5
Clause 2.17.3 JCT
6
Clause 2.18.1 JCT
7
Clause 2.26.2 JCT
8
Clause 2.26.3 JCT
work at the initially agreed time.9 Importantly, the contractor must extensively explain
preferably in writing the nature and the resultant effects occasioned by the delay.
Additionally, the contractor is under obligation to estimate the delay based on assessment
done in outlining the cause of the delay.10 In addition the contractor must cite the relevant
events that directly lead to delay of the work

After reception of notice stipulating to expected delay, the contract administrator must take
into consideration causation factor of the delay and the time proposed by the contractor issue
an extension. Consequently the extension issued must be equitable and reasonable.11 If the
contract administrator elects not to extend the completion time he must still notify the
contractor of the same with reasons that are practically reasonable.12 Likewise, relevant
omissions must be issued if no extension is forthcoming. Equally, the contractor must strive
to forestall any form of anticipated delays in construction works.13 Uniquely, the contractor
must proceed with the work in a reasonable manner in order to prevent further delays on the
construction project.14 If the contract administrator fails to enforce compliance from the
contractor, he shall be open to engage another party to fulfil the instruction but the initial
contractor shall not be liable for the extra costs incurred.

Fundamentally, the contractor is under obligation to comply with the instruction given by the
contract administrator consistently with the powers conferred to the latter to issue such
instructions.15 However, the contractor is under no obligation to abide by the contract
administrator’s instruction if he issues a reasonable remonstration to the issued instruction.16
Identically, if the instruction is in regard to a variation that would necessitate the contractor to
also vary the quotation, such instruction shall not be carried out until a confirmed acceptance
is issued consistently with clause 5.3.2 of JCT.

Application

Tongue & Groove Fabricators Ltd (‘Tongue & Groove’) being designated as the contractor is
under strict obligation to abide by the contractual obligations and any other relevant statutory
requirements. After the discovery of a cache of bronze coins during excavation it was prudent
for Tongue & Groove to halt further excavations to give room for proper excavation
consistently with the Treasure Act of 1996 and the Treasure (Designation) Order of 2002.
Consequently, the compliance of this stature results in significant delays in the construction
work as Tongue & Groove is forced to suspend work for six weeks as archaeologists conduct
their excavations.

Tongue & Groove is therefore mandated to notify High-Octane of the expected delays arising
from the discovery of the cache of bronze coins and the subsequent halting of the work as the

9
Clause 2.27.1 JCT
10
Clause 2.27.2 JCT
11
Clause 2.28.1 JCT
12
Clause 2.28.2 JCT
13
Clause 2.28.6 JCT
14
Clause 2.29 JCT
15
Clause 3.10 JCT
16
Clause 3.10.1 JCT
archaeologist work on the site. It is prudent that these reasons are explained to High-Octane if
Tongue & Groove are intending to secure an extension. It is upon High-Octane to grant or
deny an extension taking cognisance of the grounds cited by Tongue & Groove. Although
Tongue & Groove is under obligation to forestall any form of delay and religiously abide by
the timeframe stipulated under the construction contract. If High-Octane is unable to give
extension it must propose practical alternatives in order to meet the deadline.

Crucially, Tongue & Groove is supposed to abide by the instructions issued by High-Octane
in its part fulfilment of the construction contract entered into. However, when it comes to
instructions that constitute variations Tongue & Groove is legally permitted to rescind such
instructions. Alternatively, Tongue & Groove may elect to carry out such instructions subject
to High-Octane approval of the quotation provided for by Tongue & Groove. If Tongue &
Groove firmly holds its ground, High-Octane will be legally allowed to bring on board
another contractor to fulfil the instructions. Should High-Octane opt for this position, Tongue
& Groove shall not be held liable for any additional cost incurred by High-Octane in the
satisfaction of the instruction.