1. Contractual options available to Pig’sEar on issues related to contract document discrepancies and failure by Artless to appointcontract administrator. In the project, Artless has failed to appoint an architector contract administrator as required under their contractual obligationswithin the JCT 2016 suite1.The three key duties of the architect2under JCT suite 2016 are (a) toprovide drawings, instructions (b) quality control (supervision) and (c)certification.
The appointment of architect is a key role of the Employer, however,if no one is appointed, the Employer is obliged to carry out their duties. Inabsence of the architect, it will the responsibility of Artless to providedrawing and supervise the construction works. In this case, Pig’s Ear need to servenotice on Artless for its failure to make appointment and consider it as afundamental breach of contract3which will entitle them to rescind the contract, sue for damages or apply for timeextension. In addition, the failure of Artless to provide Pig’sEar with relevant project drawings prior to the foundation works, willconstitute a relevant event by virtue of provisions under clause 2.12.2 of theJCT SBC/Q 2016. The relevant event4will confer a right on the Contractor to extend the completion time and claim associatedcosts. In this case, Pig’s Ear needs to evaluate the impact of the changes tothe completed works.
Pig’s Ear must serve notice to Artless upon receipt of theproject drawings, stating the reasons why they consider late issue of projectdrawings as relevant event5.Here, discrepancies and divergences discovered by Pig’s Ear in the projectdrawings6are likely to cause delays or additional cost on account of abortive orrectification works. Pig’s Ear must submit a claim to Artless with full anddetailed particulars, refer to requirements7under CDM 2015 and clauses from JCT 2016 suite, establish cause and effect totheir entitlement on cost and time.
In JCT SBC/Q 2016, extensions of time aredealt under clause 2.28 which uses the mechanism of the relevant event, whensuch an event occurs the Contractor is entitled to an extension of time. Responsibilities of Pig’s Ear under theJCT 2016 suite in dealing with issues related to faulty design of roof trussesprovided by Artless. In construction, defects can arise if work was notcarried out in accordance with standard practice or specified design or wrongmaterials, matters under the preview of the Contractor.
Alternatively, thedesigner could be at fault, if a particular design is faulty and the defectwill therefore not be attributable to the Contractor. If an absolute sense ofobligation is desired under the contract, the Contractor would be obliged toprovide and do everything necessary for the due and proper completion of thework. It would mean that the liability for defects in construction contractswould always fall under the Contractor, who will be held responsible forfailing to use best endeavours for the completion of the work and willtherefore in breach of contract. In BrunswickConstruction Ltd Vs Nowlan and Others8,a Contractor is engaged to execute all the works, with supervision of the worksby architect, the Engineer’s drawing were found to be defective, the courtsimplied a term in to the contract requiring the Contractor to warn of any knownor suspected defects in design. It is noted that belief will be sufficient9to find a duty to warn the Employer. However, in another case, Plant Construction Vs Clive Adams Associates10,adequate propping of roof trusses led to roof collapse, where the Employer wasadvised independently by Engineer, it was held that the principal duty ofContractor was to carry out the works and not subject the design to criticalexamination. It is clear that under the JCT suite, that the Contractor is notrequired to subject the preliminary design to scrutiny, he shall not be responsiblefor verifying the accuracy of the design. However, in some cases, the courtshave implied a term into building contracts requiring the Contractor to warn ofdesign defects on examination of the drawings or by reason of the Contractor’sexperience.
The rationale here is that, if a Contractor, on the basis ofexperience, takes the view that some aspect of a design is unsatisfactory orunworkable the Contractor11should not proceed to execute the design. The nature of warning will depend on circumstances,the warning must be overwhelmingly and plainly effective12. Here,Artless has not appointed an architect and the courts may apply an impliedobligation on Pig’s Ear to warn Artless of inherent defects to the roof trussdesign. Pig’s Ear ought to have written to the Employer advising on the hazardsof the roof truss and document the advice, where matters could lead to unsafeconditions and danger to life. However, Pig’s Ear have not advised Artless andchosen to build the roof truss. Having discovered the design defect later, itis only fair for Pig’s Ear to rectify the roof truss as required, cost with anyadditional time would be on Artless.
1 Clause 3.5.1 of JCTSBC/Q 2016.2 RIBA’s standard formof agreement for the appointment of an architect (SFA).
3 London Borough of Merton v.Stanley Hugh Leach Ltd. (1985) 32 B.L.R. 51.
4 Trollope & Colls Ltd. v. North West MetropolitanRegional Hospital Board 1973 2 All E.R. 260 and Peak Construction (Liverpool)Ltd. v. McKinney Foundations Ltd. (1970) 1 B.
L.R. 111.5 A relevant event is defined as any impediment, prevention or default,whether by act or omission, by the Employer, which will entitle the Contractorto time and cost, Clause 2.29.
7 of JCT SBC/Q 2016.6 Items listed in the Information Release Schedule (IRS) 66 or simplysupply of contract drawings.7 The CDM 2015 imposesgeneral duties on parties to appoint professionals and provide information.8 (1974) 21 BLR 279 Victoria University ofManchester v Wilson (1984) 10 2000 BLR 13711 Equitable Debenture Assets Corporation Ltd. v. WilliamMoss Group Ltd.
and Others (1993) 2 Con L.R. 1; (1984) 1 Const. L.J.
13112 Six Continents Retail Ltd vCarford Catering Ltd (2003) EWCA Civ 1790