Consistency or consistently? Why construction documents must be drafted with consistency, consistently

A recent construction case serves as an important reminder to parties entering into contractual agreements to ensure that any and all agreements about the allocation of liabilities should be clearly defined. This may apply not only to the contractual documents (including clearly signposted cross-references to these liabilities), but also to the pre-contractual documentation evidencing the parties' intentions.

Essentially, any and all documents which are to be relied upon, regardless of the stage at which the contract sits, should be drafted with consistency, consistently.

Which case was it?

The case was John Sisk and Son Ltd v Capital and Centric (Rose) Ltd [2025] EWHC 594 (TCC) – and you can find it here.

What was the issue?

Amendments to the published form of JCT contract are often made by contracting parties, following extensive negotiations, to tailor the contract to the particular project and allocate project risks between the parties. Ultimately, the terms agreed reflect the commercial deal between the Employer and Contractor

In this case, a complication arose as the contract (based on the published JCT 2016 contract) included a Schedule of Amendments, which unclearly amended some of the terms in the JCT contract.

What were the facts?

This case concerned the design and construction of two new residential buildings, along with repair and refurbishment works to two listed mills and other related projects. Here, the Employer (Capital and Centric) hired the Contractor (Sisk) to perform all of the works. The contract was based on the JCT Design and Build 2016.

However, extensive amendments were made in a Schedule of Amendments to shift the responsibility for ground conditions and existing structures from the Employer onto the Contractor, protecting the Employer from any failures by the Contractor in relation to these matters.

The contract provided that:

• The Contractor acknowledged that it was solely responsible for, and that the site and existing structures were suitable for, the intended development and use at Clause 2.42.3
• However, this clause was "subject to item 2 of the Clarifications", which were defined as "the clarifications headed "Contract Clarifications" contained within Volume 2, Appendix 2.9 of the Employer's Requirements", contained in separate documents
• Under the Employer's Requirements, the Employer was responsible for the ground conditions and existing structures.

The Contractor argued that the Employer did not draft this clause clearly enough, rendering it vague and uncertain.

Another factor which created uncertainty was that the Contractor sought to limit its responsibility under the contract throughout the pre-contract negotiations and impose the responsibility back onto the Employer.

As such, the documents were not cohesive and created uncertainty, and a dispute arose between the parties which eventually led to adjudication.

What was the adjudicator's view?

The Adjudicator found that the risks for ground conditions and existing structures was the Contractor's responsibility.

The Contractor disagreed, and the case was subsequently litigated in the Technology and Construction Court.

Did the Court agree?

The Honourable Judge Davies reached the opposite conclusion to the adjudicator, clarifying that:

"The determination as to what the agreed position was as at the time of entry into the contract is, thus, a matter for the proper interpretation of the contract in accordance with conventional principles." (paragraph 135)

His Honour Judge Davies found that on a proper interpretation of the contract as agreed between the Employer and Contractor, the relevant risks lay with the Employer:

"I am not satisfied that on an objective analysis the words "Employer Risk" can mean anything other than that the risk associated with the suitability of the existing structures was being accepted by C&C [the Employer] as being its contractual risk. To the contrary, that is precisely why this contract clarification was included within the contract clarifications document. Otherwise, one might ask rhetorically why even include it – especially when the tender submission clarifications document showed how sensitive C&C [the Employer] had been to Sisk's [the Contractor's] attempt two months previously to get it to accept this risk. Assessed objectively, it appears extremely unlikely that C&C [the Employer], advised by two separate consultancies as well as, it appears, by external lawyers, could have agreed to the inclusion of these two words in the mistaken belief that it was not agreeing to take the employer's risk for the existing structures suitability." (paragraph 118)

To confuse things further, there were two versions of the contract – one electronic, the other physical. The electronic contract included the “contract clarifications” and “tender submission clarifications”, while the physical contract only included a copy of the “contract clarifications” documents. The Employer argued that the "tender submission clarifications" document clearly evidenced that the liability of the ground conditions and existing structures lay with the Contractor. Judge Davies accepted that both documents formed part of the contract, although this result could have been different if the Contractor had argued against this issue. Ultimately though, this decision did not alter the Judge's findings.

Judge Davies considered all of the relevant contractual documentation alongside the contract and found that the contract was clear that the Employer was to be responsible for the conditions and existing structures outlined in the contract due to the contract cross-referencing to the relevant section of the "Employer's requirements". Although the Employer argued that the pre-contractual negotiations and evidence in the tender documents sought to impose this liability onto the Contractor, and the tender clarifications were accepted, these arguments were not sufficiently persuasive, and it was held that the Employer retained these risks.

What learnings are there for the construction industry?

A word of caution when entering into contractual relationships:

• Use clear, consistent drafting throughout any pre-contractual documents and any other documents that impact the contractual agreement - especially concerning key risk areas where obligations or liability are imposed
• Consider carefully what documents should be considered contract documents
• Do not make references to contract documents which are not intended to have legal effect - any key terms should be clearly outlined in the contract conditions
• Consider the use of priorities clauses where appropriate. Here, if it had been clear that the contract terms prevailed over the Employer's Requirements in the event of discrepancy or ambiguity, then the risks of ground conditions and existing structures may have lay with the Contractor
• Lastly, make sure that contractual documents have consistent drafting whether they are hard-copy documents or e-documents.

In a nutshell, the contract should be drafted clearly and consistently, and the parties should understand what the contract says, particularly around what they consider to be their key risks for the project, before signing on the dotted line.