Design flaw in new JCT contract, expert claims

A legal expert has called for a key addition to be made to the new JCT design and build contract to tackle the novation of the design team to the contractor.

James Davison, an associate at Cyril Sweett, described the failure to cover novation in the new contract, which came out last month, as a missed opportunity especially as novation was a relatively standard practice in design and build contracts.

He said the lack of a clause dealing with novation, where responsibility for the architect passes from client to contractor, would lead to confusion about the design liability of the parties to the process if subsequent problems occurred on the scheme.

He said: “I think it’s a shortfall the (novation) process is not reflected in the JCT contract.

The problem is it is hard to establish what was done by the designer when, either before or after novation. It’s a difficult problem to solve but that’s not a good enough reason for the JCT not to state a position on it.”

Cyril Sweett chairman Francis Ives said major clients in the retail sector had now started to avoid the confusion by avoiding novation in design and build contracts.

Ives said: “Some developers keep their own architects who write the original brief and when they pass the responsibility over o the contractors, the contractor employs a different architect to do the detail. The client’s architect keeps a watching brief for the duration of the project. Therefore there is no novation.”

Novation is a difficult problem to solve but that’s not a good enough reason for the JCT not to state a position on it

James Davison, associate, Cyril Sweett

Davison spoke about the new suite JCT contracts at a seminar in central London yesterday morning. He has also written a book on the new suite of JCT contracts called JCT: What’s New? to be published in December.

Despite his criticism of the design and build contract Davison was broadly supportive of the changes to the suite of JCT contracts. He said greater standardisation and clarity in the documents could make signing JCT contracts quicker.

He also said the new contracts would not make the process more expensive: “We shouldn’t see a percentage uplift (in costs) as a result of the new forms.”

He added that another reason for less delays would be if the industry began to use the electronic version of the contracts. He said: “If they work like the deomstration disc I used it will go very clearly and quickly.”

Davison also praised the language in the contracts. He said: “It’s kicked out a lot of the legalese, the sub clauses of sub clauses. It’s now modern business English.”