Overview
We were instructed by a contractor appointed to deliver c.£1 million of Works on a five-storey commercial development in central London. The employer had issued a heavily amended and overtightened JCT building contract, containing aggressive risk-shifting provisions, unclear obligations, and commercially unbalanced terms.
Drawing on our extensive experience advising contractors on JCT contracts, we undertook a detailed clause-by-clause review of the proposed amendments.
We identified significant legal and commercial risks that could have exposed our client to uninsured liabilities and increased the likelihood of dispute. Through skilled negotiation, we secured a fairer and commercially reasonable set of terms that better reflected our client’s commercial objectives and risk appetite.
Identifying Risks in a Schedule of Amendments to a JCT contract
Amended JCT contracts frequently contain subtle drafting changes that shift significant risks onto contractors. In this case, the employer’s schedule of amendments attempted to impose:
Broad design responsibility - The employer’s amendments attempted to transfer extensive design liability onto our client in circumstances where the Contractor’s Designed Portion was limited.
Extensive indemnities - The employer sought a range of indemnities which were unreasonably broad in the circumstances. In particular, bespoke drafting attempted to make our client’s indemnity ‘trigger’ on certain behaviours of third parties - matters outside the contractor’s direct control.
Unreasonable collateral warranty obligations - The employer sought to impose overtightened and excessive requirements in relation to the annexed collateral warranties, which went beyond market standard terms.
Omission of works - The employer sought a broad right to omit works awarded under the contract, enabling them to instruct a third party to carry out the same work without any financial consequence to the contractor.
Preconditions for practical completion - The contractor initially faced extensive and unrealistic preconditions before practical completion could be certified.
We immediately recognised that the proposed amendments departed significantly from industry standard practice. We challenged these provisions, ensuring they were replaced with more balanced drafting that properly reflected the contractor’s scope of services and insurable risk profile.
Construction Contract Negotiation: Securing Fair and Commercially Realistic Terms
Our approach focused on :
Rebalancing Design Liability - The employer sought to hold our client liable for design elements they neither produced nor controlled. We successfully renegotiated the clause, limiting liability to areas where the contractor had genuine design input. This prevented potential disputes and eliminated exposure to uninsured design risk.
Removing Unfair Indemnities - Several indemnity clauses were drafted to make the contractor responsible for wrongful acts by subcontractors or agents, regardless of fault. We secured the removal of these clauses entirely, an essential protection for any contractor entering a high-value construction project.
Fair Management of Provisional Sums and Omitted Works - We revised non-standard provisional sum language to provide for more predictable cost valuations and clearer management procedures when provisional sum items were instructed. We also negotiated a financial cap on omitted works to safeguard the contractor’s revenue stream.
Practical Completion Requirements - Excessive pre-completion documentation obligations risked delaying certification of practical completion. We negotiated sensible requirements aligned with standard construction practice, limiting the risk that practical completion could be withheld unfairly.
Trusted Legal Guidance: Ensuring Compliance and Reducing Future Disputes
During our review, we identified provisions that did not comply with current statutory requirements. We sought reasonable amendments to reduce ambiguity, enhance certainty, and minimise the likelihood of future disputes.
By updating the drafting and ensuring the contract reflected current construction law in England and Wales, we protected our client from unenforceable clauses and procedural complications.
Strategic Negotiation Under Tight Timeframes
Although the employer sought to progress the contract quickly, we worked closely with our client to ensure sufficient time was allocated for a full legal review. Our early involvement allowed:
multiple rounds of negotiation;
detailed clarification of risk;
clear advice enabling informed commercial decisions; and
removal of unfair amendments before signing.
Our structured approach gave the contractor confidence entering the contract, knowing their obligations were fair, insurable, and clearly defined.
A Balanced, Compliant and Commercially Workable Contract
Through expert legal negotiation, we delivered a contract that was:
fairly balanced and aligned with industry norms;
compliant with current construction legislation;
clear in its allocation of design, delay, and third-party risks;
commercially realistic for a central London development; and
better positioned to protect the contractor’s financial interests.
The contractor entered the project with clarity, certainty, and greatly reduced risk of future dispute-demonstrating the value of obtaining early, specialist construction law advice.
Why Contractors Choose Our Construction Law Team
Contractors regularly face amended JCT contracts that attempt to shift significant risk downstream. Our construction law team has extensive experience identifying, challenging, and renegotiating unfair terms before they impact project delivery or expose contractors to uninsured liability.
We are trusted because we:
understand market standards and best practice across the construction sector;
act swiftly when negotiations are time-sensitive;
provide clear, commercially focused advice - not just legal theory;
advocate for terms that are fair, insurable, and achievable; and
build long-lasting client relationships based on transparency and trust.
