The life of a Construction Solicitor can certainly be fast-paced with pressing Adjudication deadlines and high stakes litigation. I treated myself to a long-overdue and unexpectedly sunny break last week. What I hadn’t bargained on was immediately being put to work on the tools (albeit a plastic bucket and spade)!
It’s fair to say that my (5-year-old) “employer” was rather demanding. I was clearly given some design responsibility, but it wasn’t entirely clear what the parameters were.
What really interested me was the amount of variations that were instructed (dig a hole, increase the depth, add a channel connecting it to the sea, fill it all in, start again, etc!).
Anyone working within the construction industry will be familiar with the concept of variations (that is, changes to the works that are instructed during the course of a project). However, what is perhaps more important to look at is the effect of those changes. Is the contractor entitled to additional time and/or additional payment to carry out variations?
This raises questions in relation to what is (or, equally importantly, is not) defined as a “variation” under the construction contract and how any adjustment of the completion date and/or contract sums are to be calculated. Condition precedent clauses can also rear their heads in these situations; are there specific formalities that the contractor must comply with in order to obtain any extension of time and/or additional payment under the contract?
In my case, I had an immovable completion date (or perhaps more accurately completion time; dictated by the incoming tide). There was no prospect of being given extra time to carry out the necessary variations. Naturally that made the project all the more onerous for me. As for additional payment… I’ll move on!
It should not be hard to see the obvious similarities between my staycation dayworks and many typical commercial construction projects.
Of course, I was in a difficult position because I had a demanding “employer” and no written contract in place (had he issued a contract, with the greatest respect to my youngest son, it may not have been fantastically well-drafted). Again, the parallels with many real-life projects ought to be glaringly obvious.
I use this as an opportunity to highlight the real need to ensure that parties have robust construction contracts in place that adequately address key issues such as, but certainly not limited to, what are deemed to be variations and what are the implications of the employer instructing variations.
Holmes & Hills Solicitors’ expert Construction Law team regularly carry out construction contract reviews and drafting for parties in all areas of the construction industry.
That said, in all our years of collective experience, we are yet to come across (or draft) a clause dealing with an employer’s instruction to have their legs buried in sand…!