Guide to JCT Minor Works Building Contract 2016

128 Pages·2019·1.545 MB·\128

by  Sarah Lupton (Author)

Guide to
JCT Minor
Works
Building Contract 2016
JCT Minor Works Building Contract (MW)
JCT Minor Works Building Contract
with contractor’s design (MWD)
Sarah Lupton
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Guide to JCT Minor Works Building Contract 2016
© Sarah Lupton, 2016
Published by RIBA Publishing, part of RIBA Enterprises Ltd
The Old Post Office, St Nicholas Street, Newcastle upon Tyne, NE1 1RH
ISBN 978 1 85946 638 4, 978 1 85946 782 4 (PDF)
The right of Sarah Lupton to be identified as the Author of this Work
has been asserted in accordance with the Copyright, Designs and
Patents Act 1988 sections 77 and 78.
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any
means, electronic, mechanical, photocopying, recording or otherwise,
without prior permission of the copyright owner.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
JCT Intermediate Building Contract
At the time of writing this Guide, the 2016 edition of the JCT
Intermediate Building Contract was in development. Specific references
to that form are therefore to the 2011 edition.
Commissioning Editor: Fay Gibbons
Project Editor: Alasdair Deas
Designed and Typeset by Academic + Technical, Bristol, UK
Printed and bound by Page Bros, Norwich, UK
Cover design: Kneath Associates
Cover image: Shutterstock: www.shutterstock.com
While every effort has been made to check the accuracy and quality
of the information given in this publication, neither the Author nor the
Publisher accept any responsibility for the subsequent use of this
information, for any errors or omissions that it may contain, or for any
misunderstandings arising from it.
www.ribaenterprises.com
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iii
Foreword
The Minor Works Building Contract is by far the most widely used standard form of building
contract and plays a vitally important part in the procurement of small-scale building
projects. The 2016 edition of the Minor Works Building Contract comes in two versions:
one that includes provision for the contractor to carry out some of the design, and one
that does not. While this new edition employs the familiar logical layout, clear format and
simplicity, its attractive brevity means it is inevitably more dependent upon implied terms
than some other JCT contracts. For example, the procedural rules are minimal and, for
those unfamiliar with contract administration and law, this may raise questions.
Sarah Lupton’s new Guide to MW16, which follows on from her excellent Guide to MW11,
offers comprehensive guidance and does so in language that is easily understood.
Organised by themes, the book is a straightforward analysis of the contract in the
light of today’s legal and practice landscape, referring to recent case law and clearly
distinguishing that guidance which applies only to the With Contractor’s Design version.
The hard-pressed practitioner also will find the Guide helpful as it outlines the changes
from the 2011 edition. Practitioners will be particularly pleased to see the useful indexes
and will doubtless come to depend on being able to dip quickly into the book for specific
help during the course of a project.
I would thoroughly recommend the book to both architecture and other construction
students on the threshold of undertaking their professional examinations. The
comprehensive up-to-date coverage clearly and succinctly exposes the legal ramifications
of the contract. Sarah Lupton’s rare combination of being a legally trained architect who
also runs the MA in Professional Studies at Cardiff University makes this book the ideal
student companion.
Neil Gower, Solicitor
Chief Executive, The Joint Contracts Tribunal
September 2016
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iv
About the author
Professor Sarah Lupton MA, DipArch, LLM, RIBA, CArb is a partner in Lupton Stellakis
and directs the MA in Professional Studies at the Welsh School of Architecture. She is
dual qualified as an architect and as a lawyer. She lectures widely on subjects relating to
construction law, and is the author of many books including this series on JCT contracts,
the Guide to the RIBA Domestic and Concise Building Contracts, Which Contract? and
the 5th edition of Cornes and Lupton’s Design Liability in the Construction Industry.
She contributes regularly to the International Construction Law Review and acts as an
arbitrator, adjudicator and expert witness in construction disputes. Sarah is also chair of
the CIC’s Liability Panel and the CIC Liability Champion.
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v

Contents
Foreword iii
About the author iv
Contents v
About this Guide ix
1 About MW16 1
Key features 1
Changes since MW11 3
Use in different situations 4
Use by domestic clients 6
Use by public bodies 7
Advising on MW16 8
Some general principles of contract law 11
Formation 11
Express terms 12
Implied terms 13
Exemption clauses 16
2 Documents 19
Tendering 19
Tendering procedures 19
Contract documents 20
Health and safety documents 22
Execution 23
Use of documents 23
Interpretation, definitions 23
Priority of contract documents 24
Inconsistencies, errors or omissions 24
Custody and control of documents 25
Sub-contract documents 25
3 Obligations of the contractor 27
The works 27
Design 27
Materials, goods and workmanship: MW16 28
Materials, goods and workmanship: MWD16 29
Obligations in respect of quality of sub-contracted work 30
Compliance with statute 31
Health and safety legislation 31
Other obligations 32
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vi Guide to JCT MW16
4 Commencement and completion 35
Commencement by the contractor 35
Occupation by the employer 36
Progress 37
Completion 38
Extensions of time 39
Principle 39
Procedure 40
Assessment 44
Occupation before practical completion 45
Practical completion 46
Practical completion of the works 47
Procedure at practical completion 49
Failure to complete by the completion date 49
Liquidated and ascertained damages 49
5 Control of the works 53
Person in charge 53
Clerk of works 54
Sub-contracted work 54
Work not forming part of the contract/persons engaged by the employer 55
Principal designer 55
Information to be provided by the contract administrator 56
Information provided by the contractor 56
Inspection and tests 57
Contract administrator’s instructions 58
Variations 59
Defective work 60
Making good defects 61
6 Sums properly due 65
Provisional sums 65
Valuation of variations 66
Direct loss and/or expense 66
Fluctuations 69
7 Certification 71
Interim payments 72
Value of work properly executed 73
Accepting defective work 74
Unfixed materials and goods 75
Retention 76
Payment procedure 77
Payment when no certificate is issued 77
Deductions 79
Employer’s obligation to pay 79
Contractor’s position if the certificate is not paid 80
Contractor’s position if it disagrees with an amount certified 80
Certificates after practical completion 81
Final certificate 81
Conclusive effect of final certificate 83
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Contents vii
8 Indemnity and insurance 85
Injury to persons 86
Damage to property 86
Insurance of the works 88
Action following damage to the works 89
The contract administrator’s role in insurance 90
9 Termination 91
Repudiation or termination 91
Termination by the employer 92
Insolvency of the contractor 94
Termination by the contractor 95
Termination by either party 96
10 Dispute resolution 97
Alternative dispute resolution 97
Adjudication 98
Arbitration 101
Litigation 102
References 105
Publications 105
Cases 105
Legislation 106
Clause Index for MW16 109
Clause Index for MWD16 111
Subject Index 113
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ix

About this Guide
The JCT Minor Works Building Contract was first published in 1968, and since that date
it has been used extensively on small to medium-sized building projects. Its continuing
popularity derives from its relative shortness and simplicity, together with its long and
secure track record. It is undoubtedly an appropriate choice for smaller projects, where
the additional features of longer forms are not needed. Despite its reduced length, it still
includes a reasonable amount of flexibility, with the MWD version providing for contractor
design input, and the optional supplemental provisions allowing the user to add features
such as collaborative working, performance indicators and negotiation.
The 2016 edition will no doubt contribute to and maintain its popularity. The drafting has
been simplified and rationalised in several areas, including the certification provisions and
the clauses covering action following damage to the works. Insurance Option C has been
modified to allow for more flexible solutions to insurance where work is done to existing
buildings. In addition, provisions have been incorporated relating to fair payment, the
Public Contracts Regulations 2015 and the Freedom of Information Act 2000. This makes
the contract an ideal choice for smaller public sector projects, such as enabling works
contracts, particularly in situations where it is intended that a JCT form may also be used
on a related, larger scheme.
The Guide assumes no prior knowledge of the form. After a general introduction setting
out key provisions and changes, it explains some basic legal concepts and key legislation
relevant to smaller projects. As the form is short, it is particularly important to understand
the legal framework within which it is set, as this will help to ensure it is used appropriately.
For example, MW16 complies with the Housing Grants, Construction and Regeneration
Act 1996, as amended by the Local Democracy, Economic Development and Construction
Act 2009. The provisions introduced by this legislation, which ensure the form can be
used on commercial projects, are identified and discussed in the Guide. However, these
provisions are not essential for contracts not covered by this Act, such as those with a
residential occupier. Therefore, where the form is being considered for use in this situation
the complex provisions and their implications should be explained carefully to the client
in advance of its selection.
The Guide examines the key issues that would be relevant to the contract administrator
and the parties to the contract: the programming and timing issues, quality and control
of the works, payment, insurance, termination and dispute resolution. It contains many
tables that might act as useful checklists for the practitioner and diagrams to clarify the
procedural sequences.
This Guide is intended as a clear and straightforward point of reference for those using
and studying the form, including those encountering the contract for the first time and
those needing regular reminders when actively engaged in administering a project.
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