Despite their ferocious complexity and bewildering draftsmanship, the industry is still clinging to JCT forms. There are alternatives, and we should use them
Why are we still using JCT forms? TheY have caused an enormous volume of unnecessary litigation and arbitration, at incalculable cost – not only in financial terms, but in management time and in the reputation of the construction industry for endless disputes. To select only one quotation, it has been said of JCT80 (since replaced by the even lengthier and more incomprehensible JCT98): "… whether intended or not, the draftsmanship adopted was a very effective means of camouflaging or concealing its true meaning from any but the most expert and tireless reader. It would appear that there has been considerable (and very understandable) reluctance to use the contract, principally perhaps on grounds of incomprehensibility and administrative novelty and difficulty, but perhaps also because some public and private owners at least may at last have begun to realise how damaging the contract can be to their reasonable interest" (page 500, Construction Contracts: Principles and Policy in Tort and Contract, Ian Duncan Wallace QC, 1986).

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:

  • The JCT forms (unlike GC/Works) contain no provision for performance bonds or parent company guarantees in favour of the employer. However, JCT98 contains three forms of bond – in respect of advance payments, payment for off-site materials and/or goods, and payment in lieu of retention – to enable the contractor to receive the employer's money more quickly.

  • JCT98 With Quantities clause 30.9.1.1 provides that in certain circumstances "the final certificate shall have effect in any proceedings under or arising out of or in connection with this contract … as … conclusive evidence that where and to the extent that any of the particular qualities of any materials or goods or any particular standard of an item of workmanship was described expressly in the contract drawings or the contract bills, or in any of the numbered documents, or in any instruction issued by the architect under the conditions, or in any drawings or documents issued by the architect under clause 5.3.1.1 or

    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 30.9.1.1 – 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?

    • Postscript

    Andrew Pike is a consultant specialising in construction law at Morgan Cole Solicitors, Oxford. andrew.pike@morgan-cole.com.