Since then, there has been no improvement, but there are now two alternatives to JCT forms, in plain English and not biased against employers. These are the well-known NEC documents, and the GC/Works contracts adapted for non-government use.
I advised the Property Advisers to the Civil Estate (now part of the Office of Government Commerce) on the current GC/Works (1998) and (1999) series of contracts, and I also wrote PC/Works (1998), which adapts GC/Works (1998) for use by all non-government construction employers. The GC/Works contracts have been carefully designed to be even-handed between employer and contractor, and to continue the GC/Works tradition of comprehensibility and conciseness (only about one-third of the length of the equivalent JCT forms).
To take only two comparative examples:
5.4 or 7, to be for the approval of the architect, the particular quality or standard was to the reasonable satisfaction of the architect, but such certificate shall not be conclusive evidence that such or any other materials or goods or workmanship comply or complies with any other requirement or term of this contract …"
This gem was introduced after the Court of Appeal decision in Crown Estate Commissioners vs John Mowlem & Company (1994) showed the disastrous effect on the employer's interests of the previous version of clause 126.96.36.199 – under which it appears that the final certificate would have protected the contractor from liability even if the building had collapsed shortly thereafter.
Compare this with: "No certificate of the project manager shall of itself be conclusive evidence that any work or things to which it relates are in accordance with the contract." (GC/Works/1 With Quantities 1998).
The above and many similar problems persist year after year, despite being well-known to all concerned. Contractors' representatives on the JCT cannot be blamed for doing their best for their members. However, the unwelcome result is that well-advised employers will not use JCT forms without substantial amendments, to which contractors have to respond. This is an expensive and time-consuming process (no more in the interests of contractors than employers), which largely defeats the object of having standard forms in the first place. An adviser who advises an employer to use an unamended JCT form may find himself liable for professional negligence.
Is it not high time that the addiction to JCT forms was ended?
Andrew Pike is a consultant specialising in construction law at Morgan Cole Solicitors, Oxford. email@example.com.