In our previous article here, we discussed the main changes which the Joint Contracts Tribunal ("JCT") announced they would make as part of the new editions of the JCT contracts.
On 17th April 2024, the JCT published its long-awaited updated Design and Build Contract ("JCT DB 2024"), the first substantial update since 2016. So far, the JCT has published the JCT DB 2024 and the Minor Works Building Contract, 2024 Edition. In this article, we explore the amendments to the JCT DB 2024.
The key changes in the JCT DB 2024 include:
1. Building Safety Act 2022 ("BSA")
Following on from the latest raft of regulations in October 2023 which we discussed in our article here, this was an area which many practitioners were very keen to see addressed in the JCT.
The JCT DB 2024 includes short form clauses on the dutyholder regime, including who the principal contractor and designer will be for the purposes of the regime.
However, many consider that the amendments do not go as far as anticipated in that they do not specifically address the complexities of the issues of the new regime for Higher Risk Buildings, the golden thread of information or obligations relating to the new 'Gateways'. Therefore, it is anticipated that further amendments would be required to address various key items arising from the new laws including the aforementioned points as well as wide duties to specifically address some of the more detailed requirements under the new dutyholder regime.
The amendments also do not include anything to address the extension of limitation periods (i.e., the time period during which people can bring claims) for certain types of claims albeit there are differing views as to whether and when any such changes are required but it is certainly a point which warrants consideration, particularly on the more complex projects with multiple parties included.
2. Assessment of extension of time
The extension of time provisions have been amended such that the time available to the Employer to assess extension of time claims has been reduced from 12 to 8 weeks which runs from receipt of further information where applicable.
Additionally, the Employer now has 14 days from a Contractor's notification of particulars of a likely delay to request further information to allow it to reach a decision on an extension of time.
The changes do not, however, address what happens if the Employer fails to respond within those periods.
3. New and wider Relevant Events
The JCT DB 2024 widens 'Relevant Events' to include epidemics, which appears to be a direct response from the difficulties that came out of the Covid-19 pandemic.
It has also widened Relevant Events to include a change of law affecting the works. This has now been expanded to the "publication of guidance" which includes guidance from the Construction Leadership Council, and this again presumably stems from the confusion caused by the Covid-19 pandemic around what was to be treated as law / guidance.
4. Changes to dispute resolution
Under the disputes clause, the amendments include an obligation for the parties to negotiate and try to resolve disputes. Parties now must notify potential disputes to senior executives to seek a negotiated settlement but it's important to note that this does not cut across either party's right to refer a dispute to adjudication at any time.
5. Termination provisions
The amendments deal with liquidated damages for delay to the works when the contractor's employment is terminated, by clarifying the position that LADs will be payable until either the works are completed or if the Contractor's engagement under the contract is terminated.
The amendments also provide for a clear timetable in relation to termination payments to ensure clear compliance with the Construction Act where the Contactor's employment is terminated under these provisions and a final payment becomes due to either party.
6. Miscellaneous changes
Some additional, and non exhaustive list of changes which the JCT DB 2024 make are:
- the adoption of gender-neutral language;
- allowing for e-signatures;
- use of emails for notice provisions;
- moving the fluctuation provisions online; and
- moving the optional supplemental provisions relating to collaborative working, sustainable development, and environmental considerations into the main body of the contract.
From the changes seen from the JCT DB 2024, it is likely that future amendments will be required on projects to address specific changes and themes the construction industry has seen in recent times. It is important for those in the construction industry to understand and adapt to these changes, but also look further than the 2024 amendments to ensure that their contracts reflect the quirks and nuances of a unique project.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.