JCT Design and Build 2024 and Minor Works 2024

In April, JCT released the first of its highly anticipated 2024 suite of contracts, the JCT Design and Build 2024 (“D&B 24”) followed by the Minor Works 2024 (“MW 24”). This marks the first major update to the JCT suite of contracts since 2016.

While this blog sets out an overview of the key changes in the D&B 24, similar amendments (as applicable) have been made to MW 24.

1. Modernising

The new contracts adopt gender neutral language and makes provision for certain notices to be sent by email.

2. Collaborative Working and Sustainability

The previous supplemental option for collaborative working is now included as an Article and requires the parties to work in a cooperative and collaborative manner, in good faith and with a spirit of mutual trust and respect.

Similarly, the supplemental provision in relation to sustainability in the 2016 version has been incorporated into the main body of the contract. The Contractor is also encouraged to suggest economically viable amendments to the works to improve environmental performance and sustainability, and a reduction in environmental impact.

3. Building Safety

Changes have been made as a result of the Building Safety Act 2022. These alterations primarily relate to the new building regulations that have been made duty holder requirements. There is now a Building Regulations Principal Contractor and Principal Designer identified in the contracts, alongside operative provisions on the related dutyholder regime.

Notably, the complex regime relating to higher-risk buildings is not addressed at all in D&B 24. Therefore, detailed amendments will be required for any higher-risk buildings to address obligations, such as the gateway regime, golden thread requirements and mandatory occurrence reporting.

4. Relevant Events, Relevant Matters and Extensions of Time

New Relevant Events have been added to D&B 24 allowing the Contractor to claim an extension of time for:

1. an epidemic;
2. change in law, publication of guidance or the exercise of any statutory power; and
3. delay upon the discovery of asbestos, contaminated material and/or unexploded ordinance.

The list of Relevant Matters has also been expanded to include the above three events entitling a Contractor to claim loss and expense; however, an epidemic and change in law are optional and must be selected in the Contract Particulars.

Determination of the timescale for an Employer to respond to an extension of time has decreased from 12 weeks to 8 weeks. Additionally, an Employer has only 14 days to notify a Contractor if the Employer requires further information to assess the Contractor’s claim.

It is noted that these amendments are not found within the MW 24. Given that JCT states that the MW 24 is not suitable where detailed provisions regarding extensions of time and loss and expense are needed, this is not surprising.

5. Design Liability

Both D&B 24 and MW 24 expressly provide that a Contractor’s liability in respect of design is not subject to any fitness for purpose requirements. However, this is only to the extent required by law and acknowledging statutory requirements under the Defective Premises Act 1972.

6. Ground Risk

In D&B 24 JCT has expanded clause 3.15 (which in the 2016 version was limited to the discovery of antiquities) to include asbestos, unexploded ordinance and contaminated materials. These risks now sit with the Employer to the extent that such items were not identified in the contract documents.

7. Liquidated Damages

Both contracts clarify that liquidated damages are not recoverable following the date of termination in response to the decision in Triple Point Technologies v PTT Public Co Ltd [2021] UKSC 29.  Rather, following the date of termination, general damages are applicable.

8. Termination

Provisions dealing with payment following termination have been included in both contracts, as well as amendments to ensure the post-termination payment provisions comply with the Housing Grants, Construction and Regeneration Act 1996.

The list of insolvency events has also been updated to recognise the additional procedures introduced in the Corporate Insolvency and Governance Act 2020.

Additionally, in D&B 24 there are two new grounds for termination for both parties: epidemics and changes in law, which are subject to specific requirements.

Comment

The revised JCT contracts contain light touch updates, and the amendments are not as extensive as many had anticipated, and perhaps, hoped. For example, the changes introduced in D&B 24 do not deal with:

1. higher-risk buildings (gateways, the golden thread and extended limitation periods), which could have been dealt with by an optional selection if the relevant building was a higher-risk building;
2. insurance for existing structures – the Insurance Option C; or
3. a definition of force majeure.

As with previous releases, it is expected that there will be a transition period where the 2016 editions continue to be used as parties adapt their required schedule of amendments, in particular to cater for higher-risk buildings and building safety requirements.

JCT has recently announced that it will release the 2024 edition of the Intermediate Building Contract on 10 July 2024.

If you have any questions about the 2024 suite of JCT contracts, or construction contracts generally, please contact our Construction Team.

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