When going into a contract, there will often be opinions given such as forecasts. An incorrect opinion will not be found to be a misrepresentation. However, there are exceptions to this rule which include, but are not limited to, where it is found that an opinion was not genuinely held and the other party relied upon it, this would be misrepresentation.

Another common theme of contracts would be implied representations. The court would have to consider “what a reasonable person would have inferred was being implicitly represented by the representor’s words and conduct in their context”. For example, if a party is aware that they are going to come under financial strain that it would make the conditions of contract impossible to uphold but does not make the other party aware, this would be misrepresentation through implied representation.

A key point is that silence alone does not constitute as misrepresentation but where a party doesn’t disclose information or gives statements of “half-truth”, this may lead to a misrepresentation claim being successful.

There are three different types of misrepresentation.

Fraudulent Misrepresentation

The defendant makes a false representation to the claimant.

The defendant knows that the representation is false, alternatively, it is reckless as to whether it is true or false.

The defendant intends that the claimant should act in reliance on it.

The claimant does act in reliance on the representation and, in consequence, suffers loss.

Negligent Misrepresentation

Occurs where a statement is made by one contracting party to another carelessly or without reasonable grounds for believing its truth

Once statement is proven to be false, the representor then has the burden of proof that they believed the statement to be true.

Innocent Misrepresentation

This would be the outcome if the representor can prove that they had reasonable grounds to believe the statement was true.

There are different remedies available to the claimant, depending on the type of misrepresentation which has taken place. This is often nuanced and so it is advisable to seek legal advice when dealing with representations in a contract. Should you need to speak to an expert, contact the Quigg Golden team here.

The post Misrepresentation: What Does it Mean? appeared first on Quigg Golden.

Prior to agreeing to the contract, the parties can spend weeks, or even months, negotiating the terms.  When instructed to carry out a contract review, Quigg Golden check the terms to identify potential risks which are then highlighted and explained.  This could include any unenforceable and/or unfair terms that seek to transfer an unreasonable amount of risk to the contractor. 

In need or thinking of a contract review? Get in touch with Stephen McKenna at: stephen.mckenna@hf.law

What is the purpose of a contract review?  

1. To enable clients to make informed decisions when they are negotiating and entering into agreements; and 
2. To ensure the relevant persons know their obligations under the contract including the timeframes within which notices must be served.    

Why are contract reviews important?  

Construction is inherently risky.  How that risk is allocated between the parties can often be a deciding factor in whether a project is a success.   

These risks arise not just from the wording/form of the contract, but also any omissions, and in the minutia of law.  Seemingly unassuming wording or omissions can have significant cost implications further down the line.   

Grey areas and uncertainty within contracts are a breeding ground for disputes.  High risk and onerous clauses that were not identified prior to contract execution could have significant consequences affecting payment and claims for additional time and money. 

Legal professionals who specialise in construction contracts and disputes have the experience to identify the risk(s) posed by clauses that might otherwise seem innocuous or inconsequential.  By instructing a professional contract review, and spending a relatively modest amount, parties can manage the risk they are exposed to, and hopefully avoid expensive, drawn-out legal proceedings.  Below are some of the key areas of risk allocation that should be considered by a party prior to agreeing to a contract:  

Payment 

Payment is important for all businesses.  Heightened risks could include unusually long payment terms or impediments to receiving payment, including any condition precedents and time bars which could completely remove entitlement to payment unless certain terms are first complied with in a specified timeframe. 

Change Management   

Change management, and how change is dealt with by the parties is a common cause of disputes.  Change management includes claims for any extensions of time and additional payment (delay, disruption and variations).  

Again, any condition precedents and time bars should be identified and, if necessary, negotiated or removed.  Failure to comply with condition precedents and time bars can significantly limit a contractor’s entitlement to claim additional time and money.  

 Liquidated and Ascertained Damages 

It is important to understand how a LAD clause functions, the purpose of these clauses and how they can be negotiated to limit the risk to your company.  This might include negotiating a cap on liability. 

Design Liability 

Different forms of contract have their own ways of allocating design risk between the parties.  Common transfers of additional design risk include:   

• The Contractor assuming responsibility for any designs produced by the Employer / others;   
• The Contractor being responsible for ensuring that all designs conform with statutory requirements, and any subsequent changes to those statutory requirements (clauses such as this can have serious cost consequences, for example, cladding requirements post Grenfell); and   
• “Ground conditions”. 

Termination and Dispute Resolution    

At contract negotiation stage, there is a tendency for little attention to be paid to termination and dispute resolution provisions.  However, these provisions are extremely important, and can pose significant risk.  For example, the contract could include a “termination for convenience” clause, which allows one of the parties (usually the Employer) to terminate the contract, without the need for the Contractor to have committed a breach and without there being any cost consequences i.e., the Contractor is prevented from bringing a claim for loss of profit on the remaining works. 

What can Quigg Golden do for you? 

When reviewing standard form and bespoke contracts, it takes a trained and experienced eye to identify all the above risks (and many more we have not mentioned for the sake of brevity).   

Quigg Golden have a dedicated contract review team, with years of experience, who would be happy to discuss the potential benefits to your company of instructing us to undertake contract reviews on your behalf.  

Contact our team here. 

The post The Importance of a Contract Review appeared first on Quigg Golden.

It concerned the enforcement of what is colloquially known as, a smash and grab adjudication (one based on a technicality where a responding party fails to respond to a payment claim on time) decision. Such adjudications are commonplace in England & Wales, Scotland and Northern Ireland, all falling under the Housing Grants, Construction and Regeneration Act.

In this case, Piperhill was awarded a decision in adjudication to the sum of £725,568.35 and sought to enforce it through the High Court of Northern Ireland, pursuant to Order 14 of the Rules of the Court of Judicature (Northern Ireland) 1980.

For tailored advice on adjudication strategy, enforcement, or payment disputes, contact Quigg Golden, trusted experts in construction law and adjudication across the UK and Ireland

The Adjudication

Piperhill commenced adjudication proceedings against NIHE on 21 March 2025, stating, amongst other things, “the dispute concerns NIHE’s failures to pay the notified sum”.

The notice of adjudication (“the Notice”) set out that NIHE failed to issue a valid pay less notice in accordance with the Contract. As such, Piperhill claimed that the sum they applied for (in a payment application) on 17 February 2025 became the notified sum in line with the contract and the Construction Contracts (Northern Ireland) Order 1997 (as amended).

Accordingly, the dispute crystallised on 13 March 2025 (final date for payment) when NIHE failed to pay the claimed sum.

The Referral Notice focussed upon a failure from NIHE to comply with clause 13.11, which stated:

“…any notice given for the purpose of clause 5 or as a pay less notice must be delivered by hand or sent by email and, on the same day, sent by first class post.”

NIHE’s Response argued Piperhill was estopped from relying on strict terms of clause 13.11 in relation to methods of service. NIHE also made the case that the purported pay less notices were valid.

Piperhill argued that the notices were, in fact, defective. They said they didn’t comply with clause 50.6 or Y2.2. These clauses governed the content of the pay less notice and stipulated the requirements for these to be considered valid. NIHE then adopted the argument that the adjudicator did not have jurisdiction to decide that the notices were defective but that, in any event, the notices were not defective.

The adjudicator formed the view that the Notice provided him with jurisdiction to decide that the notices were invalid in respect of their content. The Adjudicator found in favour of Piperhill that the Notified sum was due for payment plus interest.

The Judgment

Piperhill subsequently brought the case to the High Court of Northern Ireland seeking enforcement, pursuant to Order 14 of the Rules of the Court of Judicature (Northern Ireland) 1980.

Justice Humphreys confirmed that there are limited circumstances where adjudicators’ decisions are not enforced, and it is well established that adjudicators’ decisions are typically enforced whether wrong “in fact or law” – they are “rough justice” and full under the “pay now, argue later” rule. This means that in enforcement, adjudicators’ decisions will not be reopened – they will be checked for fair procedure, and generally are rubberstamped, meaning the case can only be reopened via a separate and fresh litigation, which in our experience is rare.

Humphreys J considered that, “the court must ascertain what a reasonable person, with all the background knowledge available to the parties at the time, would have understood the words in the document to mean.”

In this vein, it was held that the adjudicator had jurisdiction to decide upon the matter. Humphreys J averred that although the referral was narrow in its arguments, focussing only upon service, the notice (which sets the scope of the dispute) took a wider approach as it was concerned with the failure to pay the notified sum which required the adjudicator, as a matter of law, to consider whether the payless notices complied with the contract.

Humphreys J added, in the alternative, that although the notice determines the scope of the dispute, the defendant is entitled to advance any defence open to it but, as the authorities recognise, this may cause the ambit of an adjudication to be unavoidably widened.

It was also addressed by the Court, that it is not permissible to commence a true value adjudication without complying with the sum ordered in an earlier adjudication.

Piperhill’s adjudication decision was enforced, with the Court awarding the notified sum of £725,568.35 plus accrued interest to the date of the decision.

Discussion

This judgment reinforces what we already know about smash and grab adjudications. Courts are strict in their application of the obligations on the payer and have no qualms in enforcing them.

The key points for parties to note are:

• Parties on both sides must ensure their notices are in accordance with the contractual provisions;
• Adjudicators’ decisions will not be reopened in court to assess correctness in fact or law;
• Respondents should be cautious of the defence they put forward as it may result in the scope of the dispute widening; and
• Complying with an obligation to pay a sum ordered in an adjudication is required prior to commencing a true value adjudication.

Quigg Golden can provide further advice and guidance on any of the issues above, do not hesitate to contact us here.

The post Smash and Grab Adjudication Enforced: Piperhill v NIHE in the High Court of Northern Ireland appeared first on Quigg Golden.

Quigg Golden offers expert guidance on all aspects of the new Procurement Act. Get in touch with our procurement experts here.

Edward Quigg, Director: “So far, the Act feels less like a big bang and more like a damp squib. Our advice to clients has been keep doing what you already do well, and then gradually start experimenting with some of the new freedoms. That measured approach seems to be working.”

Claire Graydon, Associate Director: “While the new Procurement Act represents a significant shift in how we approach public procurement, there’s still a great deal of uncertainty among clients and stakeholders. Many of the day-to-day processes, particularly around the new notices and the way change is managed, require getting used to. The introduction of new terminology has also added unnecessary complexity in places, which has, at times, confused rather than clarified. So far, it’s been relatively smooth sailing, but we anticipate that the real challenges will emerge over the next couple of months as larger, more complex procurements (initiated post-implementation) begin to progress through the new framework.”

The Procurement Act is a fairly ambitious piece of legislation, seeking to simultaneously make public procurement more streamlined, cost effective, and transparent, while also trying to avoid too radical a departure from the expectations and training of suppliers and Contracting Authorities. So far, we have seen caution as Contracting Authorities tentatively come to grips with the changes in terminology, priorities and procedures of the new Act. Competitions have largely followed the lines of the old PCR 2015- an Open Procedure here, and competitive procedure using negotiation there.  

Among suppliers, there is apprehension over, for example, the debarment list, but also interest in the likes of Dynamic Markets, and in having increased visibility of upcoming opportunities through pipeline notices.  The sector has caught its breath and settled into a new normal and is perhaps considering next steps. However, and quite sensibly in the absence of case law guidance, change has been, and it appears will remain, gradual.

The post The New Procurement Act: Six Months On appeared first on Quigg Golden.

As leading experts in construction delay and disruption claims, Quigg Golden has advised on some of the largest and most complex projects across the UK and Ireland. Our experience spans extensions of time, loss and expense claims, and defending against liquidated and ascertained damages, making Quigg Golden trusted advisers for employers, contractors, and subcontractors navigating high-stakes disputes.

If you are experiencing delay or disruption on your project, or want to learn more on the topic, please get in touch with our team.

Why Delay Claims Arise

Even the best-managed projects encounter unforeseen events: adverse weather, supply chain disruptions, design changes, or late approvals. While the causes vary, the contractual consequences are consistent; time, money, and often liquidated and ascertained damages (LADs).

Three Core Strategies for Managing Delay Claims

1. Protect Your Position Early
Delay claims succeed or fail on the strength of their records. Early and proper notification is not just good practice; it’s often a strict contractual requirement. Missing these deadlines can wipe out an otherwise valid claim.

2. Evidence and Assessment Matter
Detailed programmes, contemporaneous records, and cost substantiation form the backbone of a credible claim. Equally, when defending against a claim, probing the logic, methodology, and causation analysis is key to rebuttal.

3. Understand the Contractual Landscape
Many standard forms of contract contain similar delay provisions, but the devil is in the detail. Knowing how your contract addresses extensions of time, loss and expense, and LADs allows you to make informed decisions when a delay event occurs.

The Practical Reality

In the past several years, I have seen millions of pounds and euros at stake in delay disputes. These are not abstract problems, they have real commercial impact, and often the best outcomes come to those who are prepared, proactive, and procedurally correct from day one.

For those wanting a deeper dive into the mechanics of delay claims, including real-world case studies, contractual pitfalls, and best-practice guidance, our upcoming CPD-certified half-day session will explore these issues in detail.

Join Stephen McKenna and register here for an insightful CPD session.

The post Delay Claims in Construction – Protecting Your Position appeared first on Quigg Golden.

Need clarity on your construction insurance? Speak to Quigg Golden for expert legal advice on cover, claims, and risk management here.

What is insurance?

Insurance is a means of protecting yourself or a business from unforeseen events that may result in financial loss. By paying a premium to the insurer, you receive a policy that outlines the specific events covered. If any of these events occur, the insurer is contractually obligated to cover the associated costs. For example, if an accident or theft occurs on-site and these events are included in the policy, the insurer will cover the financial losses incurred.

Claims and Coverage Explained

There are a number of different types of insurance and ways products are packaged that impact what you are covered for and how you are covered.

An important consideration is the difference between a “claims made” policy and a “claims occurring”. A claims occurring policy will cover you for the period of the policy, so your 2024 policy covers you for events that occurred during 2024, even if the claim is made in 2025, if the event occurred in 2024, it’s the 2024 policy that covers you.

Claims made policies are different, the 2025 policy will cover you for claims made in 2025, even if the issue occurred in 2024.

Another key difference is between policies which are on the aggregate and policies which are each and every. Under aggregate policies, the amount of your coverage is for all of the claims made combined, for each and every policy, the coverage is per claim.

General Construction Insurances

In the construction industry these are the common types of insurance:

• Public Liability
• Professional Indemnity
• Employer’s Liability
• All Risk Insurance

Public Liability

Public Liability insurance covers any claims made against a business by third parties (generally meaning people not involved in the project) due to the business’s activities that may have caused injury or damage to persons or properties. It may include product liability cover depending on the individual policy. It is generally available on a events occurring basis and either aggregate or on an “each and every occurrence” basis.

It won’t cover injury to your own employees, and there can be exclusions such as contract works, negligent design, workmanship and materials that are defective or loss or damage during the defects period.

Professional Indemnity

Professional Indemnity insurance provides protection for professionals and businesses against claims arising from negligence, mistakes, or omissions while delivering their services. It helps cover legal expenses and any compensation owed if a professional or business incurs financial loss due to the advice or services given.

In the construction industry professional indemnity is used by professionals such as consultants, it is also typically used by Contractors that have design responsibility and Sub-Contractors with design elements on a project. Generally, coverage is on claims made basis, so new policies need to be purchased to maintain cover for previous years, so a retiree may need to obtain run-off insurance.

Employers Liability

Employers’ Liability insurance is a type of insurance that all firms are required to have, under the ELCI Regulation 1998. The minimum cover required by law is £5m. This compensates an employee if they get an injury or disease due in the course of their employment.

All Risk Insurance

All Risk insurance is in the name, it covers ‘all-risks’ unless it is specifically excluded from the insurance policy. It covers accidental physical damage to works on a construction project. This type of insurance in some instances can extend to cover, plant, equipment and machinery, materials that are in transit and third-party liability. This type of insurance depending on the Insurance provider may operate on an annual basis or can be got just for a single project.

With this type of insurance there are some exclusions despite the name ‘all risk’. These exclusions are war, terrorism and pressure waves. You may need to carefully read the policies and consider any overlaps.

Conclusion

Insurance plays a vital role in the construction industry by protecting all parties involved from financial risk and unforeseen events. From accidents on site to professional errors or damage to property, insurance helps ensure that Contractors, Subcontractors, and employers are covered against a wide range of liabilities. Each type of insurance, such as public liability, professional indemnity, employer’s liability, and all-risk insurance, serves a specific purpose and addresses different risks that can arise during or after construction projects. While the details of insurance policies can be complex, understanding the basic requirements and responsibilities is essential from legal perspective.

The post Insurance / Indemnity appeared first on Quigg Golden.

Alternatively, practical completion can refer to the point at which an architect or contract administrator (“A/CA”) confirms that the contractor has achieved practical completion under the contract. Usually this is via the A/CA issuing a certificate to this effect. However, most standard form contracts do not actually define practical completion, instead leaving this to the professional judgment of the A/CA.

If you’re facing a dispute about practical completion, or just want to understand the risk, we’re here to help. Get in touch with our team of experts here.

Why is practical completion important?

Practical completion usually signifies a turning point in a project, in that it should (1) trigger the return of any retention monies and (2) the final account stage. Practical completion is also usually the end point for the calculation of any liquid ascertained damages (“LADs”) which may be due from the contractor to the employer and is often the point at which limitation periods for defects claims and similar begin. It is primarily for these reasons that contractors are generally keen for practical completion to be agreed as having been achieved and for this to happen sooner rather than later.

Conversely, employers are reluctant to take possession of a building which they consider containing defects. They may resist practical completion, to put pressure on a contractor by withholding sums that would otherwise be due.

The effects of practical completion, coupled with the lack of an agreed definition within standard form contracts, means that the question of whether or not practical completion has been achieved is a common cause of disputes. It is also an issue which, somewhat surprisingly, does not come before the higher courts very often. With the current authoritative cases being spread out between 1969 and the present day.

Mears Ltd v Costplan Services South East & Ors – [2019]

In 2019, the issue of practical completion did come before the Court of Appeal for the first time in 50 years via Mears Ltd v Costplan Services South East & Ors [2019] EWCA Civ 502. In its judgment, the court set out guidance regarding practical completion whereby Lord Justice Coulson reviewed the existing case law and authorities and summarised the current position to be as follows:

1. Practical completion is easier to recognise than define. There are no hard and fast rules.

2. The existence of latent defects cannot prevent practical completion. If the defect is latent, nobody knows about it, and it cannot therefore prevent the certifier from concluding that practical completion has been achieved.

3. In relation to patent defects, there is no difference between an item of work which must be completed (i.e., an outstanding item) and an item of defective work which requires to be remedied. Snagging lists can, and usually will, identify both types of items without distinction.

4. A practical approach has been adopted by the courts such that practical completion can be summarised as a state of affairs in which the works have been completed, free from patent defects, other than ones to be ignored as trifling.

5. Whether or not a defect is trifling is a matter of fact and degree, to be measured against the “purpose of allowing the employers to take possession of the works and to use them as intended”. However, this does not mean that if a house can be inhibited, or a hotel opened for business, that regardless of the nature or extent of any incomplete works, or defects, that the works must be regarded as having achieved practical completion.

6. The fact that a defect may be irremediable, does not itself preclude the achievement of practical completion.

When has practical completion been achieved?

Disputes concerning practical completion are likely to remain common. Despite the position of the court in Mears being helpful, the intervening years have not seen a drastic change in the nature of disputes surrounding practical completion- contractors continue to argue it should have been certified sooner, employers and architects continue to argue failures that prevent practical completion from being certified. There are no hard and fast rules as to who will be correct every time.
However, the court’s judgment in Mears at least offers a starting point for any parties to a dispute concerning the issue of whether or not practical completion has been achieved.

If you need further advice on practical completion, please get in touch with the Construction Law experts here.

The post Practical Completion – What does it mean and why is it important? appeared first on Quigg Golden.

Stakeholders must prepare for tighter compliance expectations and more scrutiny. Quigg Golden can support and advise clients with building registration, statutory compliance, enforcement response strategies, and cost recovery processes.

Understanding these changes early allows organisations to manage legal and financial risks effectively. Should you need advice on navigating the changes introduced by the Act, please do not hesitate to contact Harry King at: Harry.King@HF.law

1. Fixing Buildings Faster

The Bill expands the legal duty for building owners by setting specific deadlines for completing remediation works. By the end of 2029, all ‘higher risk buildings’ (at least 18 metres in height or having at least 7 storeys and containing at least 2 residential units) in government-funded schemes must be remediated. For buildings above 11 metres (or 5 storeys) with unsafe cladding, remediation must either be completed or have a date set for completion by the end of 2029. Otherwise, landlords could be liable for severe penalties. The aim of these measures is to move away from voluntary compliance and towards statutory duties with defined consequences.

Local authorities, fire and rescue services, and the Building Safety Regulator (BSR) will receive expanded enforcement powers. These include the ability to compel action and impose penalties via instruments such as Remediation Orders. A Remediation Order requires a landlord to remedy certain building safety defects and Remediation Contribution Orders require a specified party to contribute towards the cost of remedying defects. These orders can be made against a landlord under a lease of a building, or any part of it, in relation to any building that contains at least 2 dwellings and is at least 11 metres in height, or that has at least 5 storeys.

The Government also proposes giving new powers to the Secretary of State and regulators to compel entities to disclose their beneficial ownership chains to address delays and evasion techniques caused by complex or obscured ownership structures.

2. Identifying Unsafe Buildings

The proposed legislation closes the existing gap that excludes 11–18 metre buildings from current registration duties. The revised framework will require all buildings above 11 metres, like those above 18 metres under the previous regime, to register with the Building Safety Regulator. Non-compliance could result in civil or criminal penalties.

Data from the National Audit Office estimates that 60% of unsafe buildings over 11 metres remain unidentified. The scale of the issues is illustrated by the finding that 2,500 social housing dwellings are already confirmed to have unsafe cladding. Further, it is estimated that 4,000 to 7,000 additional buildings above 11 metres with unsafe cladding are yet to be identified. The enhanced registry and clearer legal obligations aim to facilitate identification and remediation.

3. Supporting Residents and Cost Clarity

The Leasehold and Freehold Reform Act 2024 (effective October 2024) introduced changes to clarify leaseholders’ rights to recover costs from landlords that have previously been paid in connection with remediation. These include expenses for interim measures such as waking watches, evacuation alarms, expert reports, and alternative accommodation. Amendments to the Landlord and Tenant Act 1987 also make clear that court-appointed managers who have taken on landlord duties can also be responsible for building safety duties when landlords fail to act.

The Waking Watch Replacement Fund has been extended to March 2026. This extension supports the leaseholder protections set out in Part 5 of the BSA 2022; it means the majority of leaseholders can no longer be required to contribute to the costs of Waking Watch and alarms, and moves liability to pay, that would have previously sat with leaseholders, to landlords and building owners. Additionally, leaseholders are now protected from bearing the cost of remediation tied to landlords who are insolvent.

Outside of the Remediation Acceleration Plan, the Government also published a joint plan to accelerate developer-led remediation and improve resident experience. This is separate from the 2023 developer remediation contract which required developers to contractually commit to remediate unsafe buildings which they developed. Whilst this joint plan only commits developers to make every effort to achieve several stretch targets, it reflects the onus of responsibility the Government is intending to impose on developers.

4. Building Safety Levy and Certification

A new Building Safety Levy will apply from October 2026 and aims to collect £3.4 billion over the next decade to fix unsafe buildings. The levy will be charged on most new residential developments requiring building control approval, subject to certain exemptions. Non-payment of the levy will result in the withholding of a building control completion certificate, or rejection of a final certificate. The draft regulations (called The Building Safety Levy (England) Regulations 2025) setting out how the levy will operate were laid in Parliament on 10 July 2025; these remain subject to Parliamentary approval, but the clear intention is to make developers contribute financially to remedy historic safety defects.

Building Assessment Certificates (BACs) are being introduced to document compliance. Accountable Persons and Principal Accountable Persons must ensure that their buildings meet the legal requirements at the time of assessment. These certificates are likely to become a key part of regulatory scrutiny moving forward.

5. Expanding Risk Definitions

The Grenfell Tower Inquiry’s Phase 2 recommendations are expected to influence further amendments. One anticipated change is a broader definition of “high-risk buildings” to include not just height but factors such as resident vulnerability. If implemented, this will affect building categorisation, risk assessments, and the scope of legal duties.

Conclusion

The forthcoming legislative changes represent a significant shift in the building safety framework. The government’s objectives are clear: speed up remediation, close data and regulatory gaps, and shift financial burdens away from residents. While these proposals aim to increase compliance and accountability, challenges in identification, enforcement, and resourcing persist.

If you require advice, representation or training on the Building Safety Act and/or the current or upcoming changes, please get in touch with our construction law specialist team here to learn more.

The post The Building Safety Act: The Latest Amendments and Their Practical Effects appeared first on Quigg Golden.

So, what are the consequences if: payments are made for a late payment application; variations are accepted without daywork sheets being signed; or if a claim is agreed without it being notified in accordance with the contract?

In these instances, if a pattern of these actions can be established, this may prevent the employing party from enforcing the strict contractual provisions – such as the condition precedents often associated with the notifications for claims under a construction contract.

In other words, if a party, through its conduct, has led another party to believe that an action (such as issuing a payment application late) is acceptable, it cannot then challenge a payment application that was submitted late on the basis that it was not submitted in accordance with the timing provisions of the contract.  This is known as estoppel by convention.

Feel free to contact Micheál O’Shea at: micheal.o’shea@hf.law if you’d like advice on how these principles may apply to your project.

Estoppel by Convention 

For estoppel by convention to arise, some conditions must be fulfilled, they are as follows:

1. A common assumption must be shared between the parties, evidenced in writing or through consistent conduct;
2. The party relying on the assumption must have altered its behaviour in some way in expectation of reliance on that assumption;
3. There must be actual reliance on the assumption;
4. This reliance must have occurred throughout the dealings between the parties (therefore forming a convention) and, because of this reliance ,some detriment must have been suffered by the party relying on the estoppel;
5. It must then be unconscionable for the party against whom the estoppel was raised to depart from the established convention.

When these conditions are satisfied, the parties can create a convention which binds their future conduct.  As a result, a party may be liable for its failure to act in accordance with the convention that was established by its previous acts and may be prevented (i.e estopped) from enforcing what would otherwise be its contractual rights.

Estoppel by Convention – Construction Caselaw

Estoppel by convention was one of the arguments raised in the well-known TCC case of Leeds City Council v Waco UK Ltd [2015] EWHC 1400 (TCC) (22 May 2015).  In this case, twenty-four applications for payment were made by WACO UK Limited (“WACO”), fifteen of which were issued after the contractual payment claim date but subsequently paid by Leeds County Council (“LCC”).

The judge found that a convention had formed whereby LCC had agreed to accept applications for payment that WACO had issued late, and because of this, LCC would have been unable to reject or challenge any late applications.  Obviously, there would be some limitations to this, for example there is a difference between accepting a payment application a day late and a month late, so the extent of any contractual relaxation will be a limiting factor.

While this finding did not ultimately contribute to the judgement reached, it provides a clear example for when an estoppel by convention argument may arise during a construction contract.

The difficulties for a party seeking to rely on an estoppel by convention argument will be in proving that a common assumption has been shared between the parties.  This is subjective and not always immediately clear.

In the previous payment example above, this may prove simpler when there is a consistent record of payment correspondence between the parties, however, when it comes to more impromptu events such as notifications for additional time and money claims or the agreed valuation of variations, the challenge will be much greater.  As the Judge in WACO stated, “One swallow does not make a summer” – so one act is insufficient to establish a course of dealings.

Nonetheless, our advice remains the same: ensure you are adhering to the contractual provisions and keep detailed contemporaneous records under your contract and you will be better placed to fulfil the burden on any contractual claim.

Limitations to Estoppel by Convention

Like any legal doctrine or principle, there are some limitations to the estoppel by convention doctrine that you should be aware of:

a) You will remain liable for any statutory obligations, so failing to enforce a Health and Safety obligation will not entitle a contractor to escape liability;

b) Estoppel cannot be a cause of action, only as a defence, in the payment examples above, this means it can only be used to resist the denial of the application’s validity, not to assert the application is valid (subtle but there is a difference);

c) Estoppels are not eternal, and they can come to an end if it is communicated that the common assumption will be ended; and

d) Non-waiver clauses incorporated into many amended forms of contract will attempt to ensure that no action by a party can constitute a waiver of any such provision or create an estoppel to enforce such provision in the future – although there are ways to argue around this.

As mentioned above, the overriding objective of the doctrine of estoppel by convention is to “mitigate the rigours of strict law” and to provide complete justice when the actions of the parties are fully considered, so despite its limitations, it still remains a viable remedy – particularly for payees under a construction contract.

Summary

In my experience, estoppel by convention is a frequent argument raised in contentious construction disputes, especially in relation to the rejection of claims under notification or time bar provisions.  Often, contemporary records can show that previous non-notified claims were accepted – potentially forming a convention.  This often results in claims being due (whether it be decided by an adjudicator or otherwise) even though such claims were not notified correctly.

The key takeaway is simple: the contractual provisions within your contract can be altered by conduct between parties.  This may be seen as somewhat of a redeeming feature for some, for others this may be a cause for concern.

If a project team member has acted outside of your contract, maintained this position for an extended period of time and is now attempting to revert from that position,  please get in contact with us for some detailed advice on how to deal with your particular situation.

If you have any questions on the matter, please contact Micheál O’Shea at:
micheal.o’shea@hf.law

Don’t forget to follow Quigg Golden on LinkedIn here.

The post “But you accepted it the last time”: Can past actions prevent the enforcement of contractual provisions? appeared first on Quigg Golden.

At Quigg Golden, our team brings vast experience in contract advice and drafting, drawn from a wide range of complex projects across the UK, Ireland, and internationally, including multi-million-pound projects. Combined with our expertise in dispute resolution, we’re well placed to help you identify and manage contractual risks before they arise.

If you have any questions arising from the webinar or this summary, please don’t hesitate to contact our construction experts here. You can also explore our full range of contract advice and drafting services.

Let’s look at the key takeaways from Edwards webinar:

How Critical is it to Choose the Right Contract?

Choosing the right contract for port projects is critical to the success of both procurement and delivery. Port works often involve complex civil engineering, marine operations, and co-ordination with multiple stakeholders. The contract you select not only determines how risk is shared and managed but also signals to the market what kind of client you are. Using a fair, well-understood contract can help attract experienced contractors. Which is particularly important in a sector where skilled marine and infrastructure expertise is limited. The key aspects of choosing the right contract are discussed below:

Contract Choice Shapes Risk and Market Appeal

Choosing the right contract for your project is crucial, it does not only allocate risk and responsibility of a project, but it can also shape how the project is delivered and how attractive it is to the market. Having the right contract can make you a client contractors want to work with, making you attractive in the market.

Choosing a contract that is fair and well understood attracts the limited pool of competent, experienced contractors. In the contract, avoid drafting documents that seek to push all the risk onto the contractor and that include unreasonable obligations.

Engage the Market Early

The Procurement Act 2023 allows for a limited pre-market engagement. If unsure how the proposed terms will be perceived, sit down with contractors you wish to work with. Share your proposed terms and take on board their feedback.

Favour Standard Forms over Bespoke Drafting

Standard form contracts like JCT, FIDIC, NEC, and LOGIC have evolved through years of practical use and legal scrutiny. Drafting a bespoke contract from scratch is something that we would advise against. Due to the fact you’re unlikely to cover ground that hasn’t already been carefully considered in a standard form contract.

Choosing The Right Contract for Your Sector

The JCT, FIDIC, NEC and LOGIC contracts all cover issues such as:

• Design Responsibility & Duty
• Liability For Adverse Physical Conditions
• Force Majeure Events
• Management & Evaluation

Each contract deals with these issues slightly different, however one is not particularly more correct than the other.

We would advise to use the contract that is most commonly used in the market you are carrying out work.

Types of Contracts Based on Type of Work

Of the main contract choices for port works, and perhaps an oversimplification:

• FIDIC & NEC- these are generally used for civil engineering projects
• JCT- Building projects where there is no marine interference
• LOGIC- Working on or under water

The choice between FIDIC & NEC4 is a personal choice between wanting an international contractor or a domestic one.

• FIDIC tends to attract international contractors
• NEC4 tends to attract domestic contractors

FIDIC would typically just push it over the line for an international contractor to complete the works. Whilst NEC4 would be favoured by domestic contractors as they understand it and accept the process well.

Tailor Amendments Thoughtfully

Once the standard form of contract is selected, project specific amendments are to be considered in collaboration with experienced construction lawyers and project managers. Working in collaboration will help to identify key relevant issues to the specific project’s circumstances. In some cases, firms have their own standard set of amendments that they use routinely. However, we advise that it’s unlikely that a generic set of changes will be any more suited to your project than an unamended standard form itself. A blanket generalised approach.

Conclusion

To conclude, in port construction when it comes to choosing the right contract, one size rarely fits all. However, choosing a contract aligned with the nature of the works and industry expectations is essential. Whether you’re dealing with marine infrastructure, civil works, or building elements, opting for commonly used contracts like FIDIC, NEC, JCT, or LOGIC, paired with thoughtful, project-specific amendments, can help manage risk effectively and appeal to the right contractors. Engaging the market early and avoiding overly bespoke or one-sided drafting will ultimately contribute to smoother delivery and stronger partnerships.

If you require advice, representation or training on what contract suits your project best, please get in touch with our procurement law specialist team here to learn more.

The post Choosing the Right Contract: 5 Key Insights from BPA Webinar appeared first on Quigg Golden.