Karen Kirkham explains how she expects the contracts body to respond to the challenges of a fast-changing industry
After a long association with the Joint Contracts Tribunal (JCT), which started at the Construction Confederation during the “Latham years” of the late 1990s, I am pleased and proud to have been appointed chair. After only two months at the helm, my vision of its goals and aspirations is by no means complete – I am still getting used to all the cogs and levers of the organisation. However, I would say the initial priorities must be:
- To maintain the profile and standing of the JCT within the industry
- To maintain the very high degree of industry engagement
- To support the industry in meeting the many challenges it is now facing.
With another brand, you might refer to this as “market penetration”, and on that score we continue to do well. However, we are more than a commercial publisher – the JCT is a valued institution in its own right, separate from its member institutions and more than the sum of those, also very valuable, parts.
Standard contracts are not just there to embody the commercial will of the parties and reflect current legislation. They are in a unique position of influence
We cannot rest on our laurels based on a place in the bestsellers list. To stay relevant, we must move forward and innovate. It is not just a matter of producing new editions. Of course, there is one in preparation (when is there not – the Forth Bridge comes to mind!). But standard contracts are not just there to embody the commercial will of the parties and reflect current legislation. They are in a unique position of influence, and should look forward to the future, aiming to achieve fairness and balance where possible and modifying parties’ behaviour, leading them gently down the path of good practice.
To give an example, how many people think that it is a mandatory statutory requirement that a pay less notice be served five days before the final date? It simply is not the case. Instead, it is what the JCT decided to do in response to the Construction Act and is now regarded as “the right thing to do” by many bodies. If someone decides to change this, they at least need to give it serious thought.
One big reason why the JCT enjoys its high profile and standing is the impressive level of engagement from the people in the industry who comprise the JCT council and board – as well as the various committees and working groups.
These good people give up their time (rather a lot of it, as it happens) free of charge, for love or from a sense of duty, and JCT would be nothing without them. Some of those people have been around the JCT for as long as I have, but there also are new people coming in. Participation comes through the colleges that are the member bodies, representing clients, contractors, specialists and consultants in England, Wales and Scotland.
We need to maintain that engagement with future generations. If you do fancy getting involved, I would urge you to take a look at our website and check out the representative bodies. If you are setting out in your career, particularly consider joining the JCT Young Professionals Group. JCT YPG is a group for professionals within roughly their first 10 years in construction and who are interested in raising their profile, expanding their network, connecting with peers, and giving back to the industry through the JCT. It would be great if individuals in this group were to become the council, board and working group members of the future.
Finally, construction is facing multiple challenges, many of which need to be addressed in our contracts. The first task will be with the mechanics. In 1998 a colleague from another jurisdiction came to me with an expression of horror, asking if he needed to review “all these bits of paper” (CDP, sectional completion, loose leaf amendments) and work out, collectively, what they all meant – the answer was: “Sorry, yes!”
Now contracts are often digital, with optional provisions selected at the click of a button. The pandemic and the shift towards home-working has accelerated this process. New technologies will make further changes to the way we agree and execute our contracts.
Meanwhile, the Grenfell disaster may lead to radical changes in contractual approaches to building safety and risk allocation. There is debate as to whether covid-19 should change our approach to force majeure types of event too. And environmental concerns will find their way into the contract in some form, as what was once merely a worthy aspiration becomes essential with a demonstrable financial impact.
In addition, while as the first woman to serve as JCT chair I am good company with various other women on the board and council, we need to strive much harder for greater diversity. This needs to be reflected at every level, even down to our use of language in the contracts. Please get involved and come with us on our journey.
Karen Kirkham is head of construction at law firm BDB Pitmans as well as being chair of the JCT