Q&As

An employer has served a default notice to terminate a JCT Design & Build 2011 contract on the basis of the contractor's failure to proceed regularly and diligently with the performance of its obligations. If a new issue/ground for termination arises after service of the notice served specifying the default, can the employer use this new issue/ground in their argument for termination?

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Produced in partnership with Abdul-Lateef Jinadu of Keating Chambers
Published on LexisPSL on 29/07/2020

The following Construction Q&A Produced in partnership with Abdul-Lateef Jinadu of Keating Chambers provides comprehensive and up to date legal information covering:

  • An employer has served a default notice to terminate a JCT Design & Build 2011 contract on the basis of the contractor's failure to proceed regularly and diligently with the performance of its obligations. If a new issue/ground for termination arises after service of the notice served specifying the default, can the employer use this new issue/ground in their argument for termination?

Depending on the nature of the new issue/ground for termination that has occurred after service of the default notice specifying the contractor's failure to proceed regularly and diligently, the employer may have two options to consider as to how it might proceed.

The JCT Design and Build Contract 2011 Edition provides as follows at Clause 8.3:

‘8.3.1 The provisions of clauses 8.4 to 8.7 are without prejudice to any other rights and remedies of the Employer. The provisions of clauses 8.9 and 8.10 and (in the case of termination under either of those clauses) the provisions of clause 8.12, are without prejudice to any other rights and remedies of the Contractor.’

The effect of this provision is to act as an express reservation of any other rights or remedies which the employer has and it sp

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