Why it’s important to use everyday language in contract documents

Goodness knows it’s obvious. There are far, far too many standard form contract documents; worse, none – I repeat, none – are easy to understand. My living over many years, like that of many other folks, has thrived on arguments not only about what the confounded clause meant, but also whether the machinery laid down has been followed. I love it; I love it! Do you? Hmmm.

The job ran late (nothing new). The claim was for the late completion losses (nothing new)… each wanted squillions from the other party (nothing new). Each pointed to the contractual machinery and yelled “failure!” at each other. Familiar stuff, yes?

The part of the Appeal Court judgment that rings my bell, is where his lordship says: “The first point that DBS make is that there is no sufficient language of conditionality in clause 6.1. I disagree. Almost any sentence beginning with the word ‘if’ is conditional. A sentence whose structure is ‘if, then’ is the paradigm of conditionality. In grammatical terms, the ‘if’ part of the sentence which expresses the condition is called the protasis, and the ‘then’ part of the sentence which expresses the consequence of the condition being satisfied is called the apodosis. That part of the sentence beginning with ‘then’ is not reached until the condition introduced by ‘if’ has been satisfied.”

This Court of Appeal judgment is required reading for any and all folk embarking upon a building contract, and even more so for the adjudicators in the land. it needs a training course

Now, for those of you who studied Latin and Greek at school, you will be immediately familiar with protasis and apodosis. I recall, in my surveying days, discussing this at length with the bricklayers when doing the weekly measure.

The task of the court was to grapple with the question of whether the claimed want of performance required a specific notice. The old cases discussed in this judgment mostly came from building construction disputes that landed up in court. Hugely important, because the busy world of construction adjudication so often has to ask whether the correct, or any, notice has been given. That’s what we mean by contractual machinery. And let me say at this stage that it matters not whether a party has a clue about the complexities of the machinery, or never even opened the standard form contract: it’s no excuse. The adjudicator will want to know whether this or that provision has been operated. Put bluntly, and this worries me, it’s no damn good just being a really good builder; it’s not enough. It’s no damn good just having the team of excellent tradespeople, nor enough to be top dog at estimating, buying, measuring, or just working hard. No, No. The other half of the job is burning that midnight oil learning about contractual stuff in those standard forms of contract. Operating the contractual bumf, understanding it, and embracing it, is the other half of this construction business.

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The case I am pointing to is: Disclosure and Barring Service (DBS) vs Tata Consultancy Services Ltd (TCS) [2025] EWCA Civ 380. The task was to build a new system for DBS. It didn’t go well. TCS sued for £125m in delay losses. DBS sued in return for £100m in delay losses. The issue before the first judge, and once it got to the three judges in the Court of Appeal, was about contractual machinery. Seemingly (and I précis) the provision provides that IF (watch out for that word) at any time the contractor becomes aware that it will not, or is unlikely to achieve, a key or milestone date, it shall notify the employer and say why. That’s the sort of thing we see in our plethora of standard forms. Did you spot the “if”? It’s the first click of the machinery. Now look for the “then”. Here it was up to the employer to then issue a non-conformance report (NCR), and decide from among a list of options whether to claim delay payments. Pause.

It happens time and again that a party to a contract doesn’t trigger the machinery properly, or at all. Life gets in the way. The busy builder in real life hasn’t got time for these contractual niceties. They firefight every day – about the workforce, the materials, the plant, the weather, the want of information, the variations and the distractions. Even at big builder and contractor level, it’s one helluva job to be thumbing the clauses in the umpteen-page document written in legal jargon to detect what are known as conditions precedent. Rummaging for a rule, which requires a piece of paper, a notice, isn’t a priority when you’re up to your neck in the everyday stuff of doing the actual job.

Here, TCS said that DBS had failed to comply with sending a notice, that being a condition precedent. For its part, DBS said that it didn’t have to send any notice because the clause being debated was not a condition precedent. TCS got home. The ingredient was to look for the “if… then” device.

The Court of Appeal judgment – and the superb first single judge judgment (from May 2024) – is required reading for any and all folk embarking upon a building contract, and even more so for the adjudicators in the land. It needs a training course.

Just a final thought for you folk designing these standard forms, such as JCT, NEC and so on. I was brought up with JCT63. It was a skinny document. Then it got fatter and fatter. Stop it, please. The form has to be for everyday use by my builders. Even those who read Latin and Greek.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple