Category: Law

Delay Damages: £1 or £1m per day?

Once you have realised the truth behind the pesky myths surrounding liquidated damages, you will need to consider what level of liquidated damages should go into your contracts. There are a number of options: If you state £nil, then the client cannot recover any of its losses for late completion

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Delay Damages: Busting the Myths

One of my favourite activities in contract workshops when we are reviewing time, is to ask whether the Wembley damages of £120,000 per day are a penalty or fully recoverable by the client (notwithstanding arguments about whether the contractor is entitled to an extension of time). Myths Invariably some of

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Fitness for Purpose aka Promising the Impossible

One of the contract traps for anyone providing construction works is a fitness for purpose obligation. This type of strict liability output obligation is rarely expressly included in a construction contract* (one of the arguments being that it is not covered by standard insurances). However… Fit for furpose Whenever I

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Review Your Scope: Is It Included?

To work out whether works, goods or services are ‘extra’ ie a change to the original scope, you need to know the original scope of the works as well as how your contract defines changes/variations/extras. However, the definition of a change varies from pretty wide (eg JCT), to narrow (MF/1)

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Review Your Contract: No Need!

Frankly there are some clauses in contracts which are little more than plastering over the cracks in poor relationships or in the pre-contract process. When reviewing your contract you should beware any of my ‘favourites’ (I use that term loosely): cancellation ‘we can terminate your contract if you don’t have

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How Flexible Should Your Scope Be?

According to the NBS Contracts and Law Survey 2018, scope creep disrupted projects more than any other factor:                           Variations were also the main cause of 42% of disputes. So what can we do about scope creep? Are

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Oral Changes: Can Clients Wriggle Out of Paying?

Defining the scope of your contract is critical. Firstly, the scope is the starting point for determining whether any goods, works and services provided are extras – if not, they should be included in the original contract price. Secondly, the contract terms will explain if the extent of the change

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What Can You Change?

Most contracts will include some form of mechanism or procedure allowing the parties to change the goods, works and services being provided. There are a number of myths about variation clauses because a simple express clause such as this in NEC4 “The Project Manager may give an instruction which changes

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Reviewing the Role of Retention

5 years ago I wrote a post about whether you could trust an employer with your retention. In the light of Carillion’s pending/actual/recent insolvency* (delete according to when you read this), I wanted to clarify the legal position on retention. For simplicity the employer refers to the paying party –

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The Swing of the Payment Pendulum

Getting paid is a perennial problem in construction. The Construction Acts 1996 and 2009 were meant to help. They were meant to prevent employers and main contractors withholding monies due without any/good reasons. But do they? The evidence In 2018, the Federation of Master Builders lambasted employers and main contractors 

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