EWJ June 61 2025 web - Flipbook - Page 117
Whose Risk is it?
by Claire Kilpatrick - Managing Associate
l Sisk would not be entitled to any extension of time
and/or additional payment for risks it did not or could
not have foreseen which affected the works.
Whose risk is it?
Construction contracts invariably include a number
of technical and commercial contract documents in
addition to the legal contract terms and conditions.
But what happens when a potential conflict arises?
This was considered in the recent case of John Sisk and
Son Limited v Capital & Centric (Rose) Limited [2025]
EWHC 594 (TCC) where the terms of an amended
JCT D&B contract and two appended "clarifications"
documents did not align. A dispute arose as to
whether the risk of the existing structures (and their
unsuitability) rested with the employer or the
contractor.
Therefore, according to these clauses, it seemed that
Sisk would be responsible for all risks in relation to the
site, including risks in the existing structures and any
information provided by C&C being wrong. However,
clause 2.42.4 stated that “this Clause 2.42 shall be
subject to item 2 of the Clarifications”.
The Clarifications were defined in the contract as the
document titled "contract clarifications" and included
in the Employer’s Requirements. In a hard copy of
the contract there was one such document included in
the contract documents. However, the electronic version of the contract (which included a number of additional documents which were considered too large
to be printed and included in the hard copy contract)
included an additional document titled ‘tender
submission clarifications”.
Background
l On 20 May 2022 Capital & Centric (Rose) Limited
(C&C) entered into a JCT D&B 2016 contract with
John Sisk and Son Limited (Sisk) for the design and
construction of substantial works at Weir Mill,
Chestergate. The contract contained substantial
amendments and included various other ‘contract
documents’ appended to the JCT form.
Item 2 of the clarifications document set out a
clarification request from Sisk for “existing structures
risk including ability to support/facilitate proposed
works” to which the response was “The Employer is to
insure the existing buildings/works. Employer also to
obtain a warranty from Arup with regard to the
suitability of the proposed works. Employer Risk.”
l During the works, issues arose in connection with
the suitability of the existing structure for which Sisk
claimed extensions of time and additional costs. The
parties disagreed over who was responsible for the
risks associated with the existing structures on the site,
including their ability to support and/or facilitate the
proposed works.
The tender submissions clarifications document
included a clarification request from Sisk as follows:
"Existing Structures Risk sits with the Employer including insurance"; Sisk's additional comments reads:
"Employer to warrant that the structural condition of
the existing fabric is suitable to facilitate the new
works"; Sisk's pricing confirmation is ticked "Unable
to price". C&C's comments under F, concealed unless
opened as explained above, reads: "Not accepted.
PCSA[5] period has been for Sisk to satisfy themselves
on exactly these issues. We will categorically not accept a blanket exclusion on existing structures". The
entry under "Position Agreed/Discussed in Meeting
on 22.03.2022" reads: "Confirmed in the meeting that
this is to clarify the employer is to insure the buildings
in line with JCT option C".
l The dispute was referred to an adjudicator who
found that “…the responsibility for ground conditions
including the identification of the basements, structures, voids, compressed structural elements and obstructions under the existing West Mill was solely Sisk's
risk". The upshot of this decision was that Sisk was unable to claim an extension of time and/or any additional costs it incurred as a result of this risk.
l Sisk subsequently brought proceedings in the TCC
by way of a Part 8 claim for declaratory relief as to the
proper construction of a clarification regarding
the risk of the potential unsuitability of the existing
structures at the site.
The contract
The contract included bespoke amendments at
clauses 2.42.1 to 2.42.4, of a type which are commonly
made to JCT D&B contracts. In summary, clauses
2.42.1 to 2.42.3 set out that:
The arguments
In summary, Sisk argued that:
l The meaning of the clarifications document was
that C&C took the risk of any unsuitability of the existing structures and Sisk was entitled to claim extensions of time and/or additional costs which arose as a
result of that risk; and
l C&C gave no representation as to the condition of
the site or existing structures, or the accuracy of any
data or information it provided to Sisk;
l Sisk had the opportunity of inspecting the physical
conditions of the site (including existing structures)
and was deemed to have inspected and examined the
site and satisfied itself as to risks or other circumstances
affecting the works; and
EXPERT WITNESS JOURNAL
l The tender submissions clarifications “merely
records the initial qualification and some history of negotiations” but did not set out the final contract position which was included in the clarifications document.
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JUNE 2025
