Construction analysis: On 9 July 2024, the Supreme Court issued its decision in Abbey v Augusta 2008 (formerly Simply), finding that a collateral warranty was not a construction contract, within the meaning of section 104(1)(a) of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996)). The warranty was therefore not subject to the statutory adjudication regime applicable to construction contracts under HGCRA 1996, s 108. In this article, our panel of construction law experts considers the implications of this landmark decision.

This Practice Note considers the disclaimer by liquidators of contracts (often a sale agreement or transfer) containing overage provisions, in the context of disclaimer of onerous property under section 178 of the Insolvency Act 1986 (IA 1986). It provides a summary of what overage is, the disclaimer of onerous property by a liquidator and whether overage can be considered ‘onerous property’ so that it is something that a liquidator can disclaim. It also considers the application by the court of the effect of the disclaimer of contracts containing overage in the case of Groveholt Ltd v Hughes. For more detailed reading on disclaimer of onerous property by a liquidator generally, see Practice Note: The process of disclaimer by a liquidator or trustee in bankruptcy under sections 178 or 315 of the Insolvency Act 1986. For the procedure to be adopted by a liquidator on disclaiming onerous property, see: Checklist and timeline for disclaimer—checklist. What is overage? Overage, in this context, generally refers to a mechanism whereby the seller of a

Contract Where a contract is made by two or more parties it may contain a promise or obligation made by two or more of those parties. Any such promise may be: • joint • several, or • joint and several Whether an undertaking is joint, several, or joint and several in contract is a question of construction and is dependent on the intention of the parties as evidenced in the contract. For example, in Rhinegold Publishing v Apex Business Development, statutory demands were served on Rhinegold Ltd, and a related company, Tannhauser Ltd, in the sums of approximately £22,000 and £31,000 respectively. A settlement agreement was subsequently entered into under which the parties agreed to pay the amounts due, but Tannhauser failed to fully do so. Although the settlement agreement was silent on the question of liability, the High Court held that on a proper construction of the agreement, the parties were jointly and severally liable. Rhinegold was therefore required to pay the outstanding sums owed by Tannhauser. Joint liability Joint liability arises

This Practice Note considers the obligation for contractors and consultants providing services under construction contracts to exercise reasonable skill and care. It looks at the implied term under section 13 of the Supply of Goods and Services Act 1982 (SGSA 1982) and express contractual requirements to exercise either ‘reasonable skill and care’ or ‘all reasonable skill and care’. It also considers what effect the word ‘diligence’ has if added to the standard of care, when the consultants or contractors have a strict liability obligation and issues around fitness for purpose. It contains links to other relevant content on standards to be met by contractors and consultants, including design obligations specifically, and fitness for purpose obligations. Supply of Goods and Services Act 1982 SGSA 1982, s 13 provides that in a relevant contract for the supply of a service, where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill (see also the Consumer Rights Act 2015 where the

This document contains searchable quick links to PDF copies of the JCT 1998 standard form contracts. See also: • JCT contracts 2024—reference copies • JCT contracts 2016—reference copies • JCT contracts 2011—reference copies • JCT contracts 2005—reference copies • FIDIC contracts—reference copies • CIOB contracts—reference copies Standard Building Contract • JCT Standard Form of Building Contract With Contractor's Design 1998 Edition • JCT Standard Form of Building Contract With Contractor's Design 1998 Edition Amendment 1: 1999 • JCT Standard Form of Building Contract With Contractor's Design 1998 Edition Amendment 2: 2000 • JCT Standard Form of Building Contract With Contractor's Design 1998 Edition Amendment 3: 2001 • JCT Standard Form of Building Contract With Contractor's Design 1998 Edition Amendment 4: 2002 • JCT Standard Form of Building Contract With Contractor's Design 1998 Edition Amendment 5: 2003 • JCT Standard Form of Building Contract 1998 Edition Contractor's Designed Portion Supplement With Quantities • JCT Standard Form of Building Contract 1998 Edition Contractor's Designed Portion Supplement Without Quantities • JCT Standard Form of Building Contract Private Without Quantities 1998 Edition • JCT

This Practice Note considers selected common law issues that arise in relation to jurisdiction agreements under English law. It focuses on matters of validity and effect, including the relevance of the common law rules, the requirements for a valid jurisdiction agreement, separability, the effect of void and voidable contracts, the position where a settlement agreement contains no jurisdiction clause, and the significance of an English law clause where no jurisdiction agreement has been made. This Practice Note is part of a suite of documents considering jurisdiction agreements: • Jurisdiction agreements—introduction provides general background, including breach and remedies • Jurisdiction agreements—principles of construction provides information on the court’s approach to construing jurisdiction clauses • Jurisdiction agreements—related contracts looks at disputes concerning whether a clause in one contract applies to another related contract • Jurisdiction agreements—competing agreements considers cases involving two or more potentially competing dispute resolution clauses In cases in which the Hague Convention on Choice of Court Agreements applies, the provisions in the convention are mandatory. For guidance, see Practice

This Practice Note summarises how the common law doctrine of frustration may operate to discharge an agreement and the legal consequences of a contract being frustrated, including issues of partial frustration, party at fault (self-induced frustration) and examples of types of frustrating event. See also Practice Notes: • Frustration event analysis—a practical guide • Frustration—key and illustrative decisions For guidance on drafting a notice asserting frustration of a contract, see Precedent: Contract frustration notice. Interest in the doctrine of frustration particularly came to the fore in light of world events such as the coronavirus (COVID-19) pandemic in 2020 and Russia’s invasion of Ukraine in 2022 and the attendant imposition of sanctions against Russian entities. The 2026 conflict in the Middle East and Iran’s effective closure of the Strait of Hormuz will likely result in similar interest in this area, see News Analysis: The Middle East conflict—key legal issues for commercial entities. Links to general guidance with regard to contractual relations and these world events is provided in the world events section below. Frustration is distinct

How to use this Checklist This Checklist sets out the key provisions to include when drafting a software development agreement. It can also aid the drafting of a simple non-binding heads of terms. The third column can be used to record observations or comments as the Checklist is worked through. Checklist Further information Notes (if any) Parties ☐ Confirm each party’s legal status and whether any third parties (such as group affiliates) will benefit from the proposed agreement ☐ Confirm whether any third party will guarantee performance or financial obligations Commencement and duration ☐ Confirm the proposed commencement or effective date ☐ Confirm if there are any preconditions which must be satisfied before the proposed agreement can take effect ☐ Confirm the nature of any early termination rights Eg termination for cause only or rights to terminate for convenience, contract break points, etc. Deliverables ☐ Confirm whether the customer has identified its requirements in relation to the software to be developed ☐ Confirm whether technical

[Subject to contract] Dear [insert name of employee] Following [insert details, eg your successful interview on [insert date]], we are delighted to offer you employment as [insert job title], at a starting salary of £[enter amount] per year. We propose a start date of [insert date]. Full details of all your terms and conditions of employment [are contained in the enclosed employment contract OR will be formalised in our standard contract of employment, which will be sent to you separately once this offer is accepted. The terms of the contract will prevail if there is any conflict between the contract and this offer letter]. [Please [also ]find enclosed your role profile outlining your key responsibilities.] [In particular, I would like to draw your attention to the following benefits[ that will apply to you OR , for which you are eligible]:] • [ [membership of our pension scheme [set out further details, eg type of scheme, contribution rates, any death-in-service benefits];] • [you are entitled to health insurance with our current private healthcare scheme, in accordance with the company’s current policy. I enclose a copy of the members

Construction analysis: The Privy Council dismissed a contractor’s claim, confirming that work expressly or impliedly included within a FIDIC Yellow Book lump sum cannot constitute a variation and that compliance with the clause 20.1 28-day notice requirement for claims is a condition precedent to additional payment. The Privy Council held that all claimed variations fell within the contractor’s design responsibility and the contract specifications, with clauses 4.10 and 4.11 allocating site condition and price sufficiency risk to the contractor. The claims also failed for procedural non-compliance, as no timely clause 20.1 notice was given, and waiver or estoppel arguments were rejected because the Engineer lacked authority to amend contractual obligations and agreed formalities could not be displaced.

Remedies The remedies available in a public procurement challenge under the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102 depend upon the circumstances. A breach of the PCR 2015 will generally permit an aggrieved party to seek an order either setting aside or preventing the award of a contract not yet awarded in accordance with the PCR 2015. A claimant may also seek damages for its losses resulting from the breach. If a contract awarded under the PCR 2015 is subsequently challenged and the court rules that the PCR 2015 have been breached, it could declare the contract ineffective, shorten the contract and fine the contracting authority. Some breaches may give rise to claims of ineffectiveness, but separate legal advice should be sought on each particular breach. In the case of framework agreements, a call-off contract awarded without adherence to the relevant rules

An employer may require several parties involved in a construction project to provide it and/or its funder, purchasers or tenants with collateral warranties. See Practice Note: What are collateral warranties? Sometimes, even though the employer has set out the requirements for collateral warranties in the building contract and consultant appointments and the requirements reflected in the relevant sub-contracts, a party will refuse to provide a collateral warranty. For example: • a contractor or consultant may refuse to provide collateral warranties to third parties (eg a funder or tenant) if it believes the employer is at fault in some way, eg there is a dispute over payment to the contractor/consultant • a contractor might refuse to procure a warranty from one of its sub-contractors if it considers that the employer is at fault in some respect under the building contract, or does not believe that it is required to provide a warranty from a particular sub-contractor under the terms of the building contract • a sub-contractor might refuse