30 May 2024

The JCT Design and Build Contract 2024 was recently published – the first of the updated ‘2024’ suite of JCT contracts. It isn’t a drastic re-write of the 2016 edition but there are some important changes to know about:

Legislative Updates

Building Regulations:

• A new Article 7 is introduced covering the new “dutyholder regime’ under Part 2A of the Building Regulations 2010 and the appointment of a Principal Designer & Principal Contractor for building regulation compliance.

• The CDM Regulations clause (and others) are adjusted to cross-refer to Article 7, the associated roles and the provision of relevant information.
• There are no specific changes to cover the additional statutory requirements under the ‘higher-risk buildings’ regime (e.g. Golden Thread Information or the three ‘Gateways’): JCT’s view being that ‘higher risk building’ work is only one type of project the contract is used for so detailed additional provisions aren’t appropriate.

Insolvency Grounds: the definition of ‘Insolvent’ is adjusted to reflect changes introduced by the Corporate Insolvency and Governance Act 2020.

Defective Premises Act: the ‘design limitation’ clause and the ‘clause 2.17.3 cap’ are both updated to reflect that the Defective Premises Act now applies to work to existing dwellings.  While there is still no general cap on a Contractor’s liability, the associated JCT guidance now provides example drafting for consideration.

New for JCT 2024

Extensions of Time:

• the period for the Employer to decide an extension of time claim is shortened from 12 weeks to 8 weeks and there is a new requirement for the Employer to notify the Contractor within 14 days of receiving particulars if further information is needed to assess an extension of time claim.
• there are new Relevant Events for:
  • epidemics limiting the availability of labour, services or materials; and
  • discovery of asbestos, contaminated material or unexploded ordnance (except where identified in the Contract Documents).
• the ‘change in law’ Relevant Event is expanded and now includes guidance issued by the Construction Leadership Council (e.g. epidemic site rules).
• clarification that, per the Triple Point Technology case, liquidated damages apply up to the date of any termination but general damages apply thereafter.

Loss and expense:

• a new Relevant Matter for discovery of asbestos, contaminated material or unexploded ordnance (except where identified in the Contract Documents). 
• new optional Relevant Matters for epidemics and change in law.  These reflect the Relevant Events and apply if selected in the Contract Particulars.

Fitness for purpose: a new clause seeking to exclude any ‘fitness for purpose’ design obligation (save where a higher duty cannot be excluded by law).

Professional Indemnity: sub-limits and exclusions can now be included in the Contract Particulars. 

Termination Accounting & Payment Provisions: the addition of Construction Act compliant payment provisions (e.g. due and final dates for payment) and the right to late payment interest.  The termination event for prolonged suspension of the Works is extended to include the new epidemic Relevant Event and revised ‘change in law’ Relevant Event.

Modernisation, Streamlining & Future Proofing

Gender neutral language: gender neutral terms have been adopted throughout.

Disputes: the parties are to notify each other of potential disputes and meet to negotiate a resolution.  This was previously an optional supplemental proivision.  The parties can now also choose their own nominating body for disputes.

Electronic Notices: there are additional provisions dealing with giving notices and other communications by email.  As a default ‘standard notices’ and communications can be given to email addresses specified by the parties but service of ‘critical notices’ (i.e. clause 1.7.4 notices) must be opted into.

Good Faith / Collaboration: there is a new Article obliging the parties to work in a co-operative and collaborative manner, in good faith and a spirit of trust and respect.  This was previously an optional supplemental provision.

Sustainability: the Contractor is encouraged to suggest economically viable changes which would beneft the sustainability / environmental performance of the Works (previously an optional supplemental provision) and is to provide information regarding the environmental impact of materials used.

Scotland

The Scottish Building Contract Committee (SBCC) will be adapting the JCT Design and Build Contract 2024 to comply with Scots law in due course but we can expect the vast majority of the changes to be carried across. 

Please get in touch

If you would like to speak further about the changes in JCT Design and Build 2024 or any construction related issued your business may be having please do get in touch with our Construction Team.

Michael Kitson, Senior Associate: mki@bto.co.uk / 0141 221 8012