How are you at treading the high-wire?
Whilst it may not seem relevant, I’m asking because high-wire acrobatics is nearly as hard as treading the fine line between suspending works and abandoning the project.
Because of this, my 500-word contracts do not include a right to suspend carrying out works or providing services. If there is nothing in your contract then your options include statutory suspension, termination, or negotiating a change to the terms.
Option 1: Statutory Suspension
Under English law, if you are working under a construction contract (most contracts for works or services on a construction project), then you have a statutory right to suspend any or all of your duties if you don’t get paid in full on time.
You must give at least 7 days’ notice to the errant payer of your intention to suspend explaining why you have that right (the grounds for suspending).
Suspension does tend to get you the payer’s attention in a way that stroppy emails don’t.
This is a powerful tool to deal with a worldwide key cause of friction. You can suspend all of your duties and ‘down tools’… but a ‘softer’ alternative is to suspend some of your duties such as insuring the works, applying for consents, carrying out new instructions or withdrawing your copyright licence. These provide sufficient leverage without completely undermining the project or your reputation.
Option 2: Termination
Abandoning a project doesn’t mean one day away, but days and days… with no intention of returning to site. Refusing to perform the work (abandoning) is a fundamental breach of contract as it indicates you no longer intend to comply with your duties under the contract. If the other party agrees and treats the contract as at an end, it is now terminated.
Option 3: Negotiation
If all else fails, you will have to sit down and agree a new deal. Any contract can be varied. If there is a mechanism within your contract, please follow it. If not, you’ll need to follow the essentials for a new contract – as well as agreeing how to end the existing one. Whatever you do agree, get it in writing and ideally signed by both parties – this is a panacea for forgetfulness.
What should you do?
If you are struggling to work with your client on a project – however tempting it may be to flounce off in a huff aka ‘down tools’ – check what your agreement says. If there’s nothing, it is worth getting legal advice as suspending without any right will allow your client to claim damages and can be very expensive in the long term.
Even large companies get this wrong – such as the subcontractor on the Wembley football stadium project.
