The recent case of John Sisk and Son Ltd v Capital & Centric (Rose) Ltd [2025] EWHC 594 (TCC) provides important lessons on contract interpretation and risk allocation in construction projects, all while highlighting the importance of clear drafting in JCT contracts.
Background
Sisk was engaged under an amended JCT Design and Build 2016 contract for the design and construction of substantial works at Weir Mill, Chestergate, Stockport. The contract contained clauses (2.42.1 to 2.42.3) broadly allocating risk for ground conditions and existing structures to Sisk. The schedule of amendments contained fairly standard changes to the JCT including an obligation on Sisk to have inspected and examined the site and its surroundings beforehand, as well as in respect of the nature of the ground, the sub-surface conditions and sub-soil. However, these clauses were “subject to item 2 of the Clarifications”.
The Clarifications were defined in the contract as the document titled “contract clarifications” contained within the Employer’s Requirements. In the electronic version of the contract there were two clarifications documents, one being a document headed “contract clarifications” and the other being a worksheet headed “tender submission clarifications”. In the paper version of the contract there was only one clarification document, a printed copy of the “contract clarifications” document.
The “Contract Clarifications” document allocated risk to Capital & Centric however Capital & Centric argued that the “tender submission clarifications” document allocated risk to Sisk.
In turn, Sisk argued that the tender submissions clarification “merely records the initial qualification and some history of negotiations” but that the final contractual position was included in the clarifications document.
Judgment
The court found that, despite some ambiguity, the overall contract terms placed these risks on Capital & Centric as the employer. It held that the electronic “tender submission clarifications” did in fact form part of the contract, but not so as to form part of the definition of “Clarifications” and clause 2.42 only intended to include the “contract clarifications” document.
Practical Takeaways
- Clarity in drafting – parties must ensure risk allocation provisions are unambiguous and internally consistent, especially where there are numerous documents involved! If you are issuing documents in electronic and paper form, it’s crucial to ensure they are the same version. The parties in this case may have avoided costly litigation had they ironed out any inconsistencies at the outset.
- Priority clauses – particularly in contracts comprising multiple documents (e.g., specifications, drawings, schedules), parties should consider including clear priority or ‘prevail’ clauses. These clauses help determine which document takes precedence in the event of a conflict or inconsistency, thereby reducing the risk of ambiguity and dispute.
- Seek legal help and advice – parties should seek legal advice at the outset to ensure the contract documents are consistent, coordinated, and legally enforceable. A comprehensive review by lawyers can identify and resolve discrepancies between documents before they escalate into costly issues during project delivery.
For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Construction Team.
