Citation: [2024] EWHC 2903 (TCC)
The Court interpreted the provisions of an amended JCT Design and Build Contract 2016 with particular focus on the scope of a contractor's responsibility for additional and unforeseen works on site, and the legitimacy of suspension and termination notices.
Facts
The claimant (BNP) engaged the defendant (B&F) to design and construct stair pressurisation works in a 30-storey office tower. These works would include removing the existing system and installing an improved system. The contract was an amended 2016 JCT Design and Build contract.
Works were complicated due to the presence of asbestos in the building. An issue arose between the parties as to the extent of the asbestos removal works, and whether B&F was obligation to carry out additional surveys and the asbestos removal works that were subsequently required, as well as additional structural works that had not initially been foreseen as part of its original scope of work.
When further asbestos was discovered, the works were halted, and B&F issued a suspension and then termination notice. BNP treated this as repudiatory breach and sought declarations that B&F was not entitled to serve either the suspension or termination notices, and that in doing so, they had breached the contract.
Decision
The Court granted each declaration.
B&F had no right to terminate. On a proper interpretation of the contract, B&F was responsible for undertaking any additional asbestos surveys and associated removal works. B&F had accepted full design responsibility, and the contract explicitly excluded employer responsibility and included express terms requiring the contractor to inspect the site conditions. There was also an express term by which the contractor agreed that no unforeseen conditions or risks would lead to an adjustment in the contract price, or an extension of the timetable. Accordingly, the contract assigned full responsibility to B&F for the complete delivery of the stair pressurisation system, which included addressing any challenges encountered in the process (including the asbestos). B&F's suspension and termination of the contract was therefore unlawful, and the halt in works was attributable to B&F’s failure to fulfil its contractual obligations.
Representation
Carlo Taczalski (Crown Office Chambers) for the Claimants, instructed by Stephenson Harwood LLP.
James Frampton (Keating Chambers) for the Defendant, instructed by Hawkswell Kilvington Limited.
The judgment can be found here.
