JCT What I've Learnt : a quick interview with Chris Dean

Chris is a Director at Contract & Construction Consultants. They are leading specialists in contract dispute resolution with many decades of experience.

They are one of the largest specialist contentious construction firms in the UK, and set the bar for other firms. They have a breadth of knowledge and experience that is not available in non-specialist firms.

Hi Chris, thank you for talking with Built Intelligence. To start us off, could you describe yourself in 10 words?

Focused on commercially acceptable solutions for problem projects and disputes.

Next, can you tell us a little bit about yourself?

I came to construction after studying law. Nearly all problems that cross my desk require starting from the very basic contract law principles: contract formation, what is the contract and so on, and then looking at what the parties have actually done in that legal framework and how to achieve the best feasible outcome in the circumstances. It means that you have to have a real hands-on approach to legal and construction issues and a focus on the relevant commercial picture, which I really enjoy.

When did you first start using JCT?

I first started using JCT contracts when I first started working in construction. I’ve been involved with lots of different projects, working with employers, contractors, sub-contractors and consultants across a wide variety of different types of construction and engineering projects.

Can you tell us about yourself and your experience with JCT?

My experience with JCT covers all of the various stages of construction projects, from the initial stage of setting the contract up, to administering it in accordance with its terms, and to resolving problems and disputes during projects and after they have long-since been completed. My experience of JCT has been largely positive. When things go wrong, it is often nothing to do with the “legal” terms and conditions (such as the JCT form) and is more frequently because parties have not properly understood what it is they are signing themselves up for, or because they have failed to perform as they should have.

What aspects do you like about your current JCT job/project?

There is one project that involves a particularly innovative system of building. It is always refreshing to be involved in the new ways that people look to solve existing problems.

Conversely, what is the hardest thing that you've had to deal with on an JCT Project?

I usually come into contact with projects at the point at which the whole job or a specific issue is going or has gone seriously wrong. Often the most difficult thing to deal with is all of the things that should have been done but have not been. For example, very often the procedures have not been followed, the right notices have not been given, and proper records have not been kept. While there are ways to try and compensate for those shortcomings, they are often far more time-consuming than they would have been had the proper steps been taken in the first place, and are less likely to result in a satisfactory outcome.

Can you name one thing that you really like about JCT?

They have really tried to cater to the market. The JCT suite includes a lot of different contracts that are designed to deal with a whole range of different contractual arrangements and projects, but are all based on the same core principles and procedures. This means that there is a degree to which users’ knowledge can be transferred from project to project, as long as they are mindful that there are differences between the forms, and they are often heavily amended, so just because something was a certain way on one project doesn’t mean that it will be on another.

Can you explain to new users the top strengths/pitfalls?

The NEC encourages good management practice by imposing various procedures on users, but the JCT does not do this to the same extent, so users must be aware that they have to enforce such procedures. One example of this is the programme – the JCT just has not got on top of how a programme should be updated in the way that, for example, the NEC has. In contrast however, a well-run JCT contract is probably less procedurally onerous to administer than a well-run NEC contract, so a strength of the JCT is that lesser resource is often required to run a JCT contract.

Could you tell me about a time when you had to make a decision, but didn't have all the information that you needed?

All the time! Most days I have to provide in relation to courses of action based on incomplete information. It is a case of weighing up what you know, making reasonable assumptions about what you don’t know, and evaluating which course of action is likely to result in the best overall outcome.

What is the biggest mistake you've made with JCT?

A mistake that I see being made all the time, and the one that often has the biggest consequences, is to do with the parties not properly understanding the complete scope of the work and the obligations they are signing themselves up to. When you ask them to explain what they think they’ve signed up to, what they say often doesn’t match the specific content of the actual documents. This often arises not just in relation to the JCT conditions, but also to all of the numerous other documents that make up construction contracts, such as other standard forms, specifications, drawings and so on.

If you could change one thing about JCT what would it be?

Readability. The language of the JCT can appear impenetrable to many users. The easier it is to read, the easier it is to properly apply and understand. Whilst this has improved over later versions of the JCT contract, there is still room for improvement.

How do you respond to criticism of JCT?

The JCT is a form that many people are familiar with and it is often the first standard form that people are exposed to. The JCT has to walk a fine line between amending to meet the changing demands of the industry, while retaining that familiarity that users have with it that stems from the long time that it has been on the market.

Finally, what suggestions do you have for JCT?

The strict time periods for claiming for changes to the project under NEC contracts encourage parties to air their differences early and resolve them before the end of the job. Parties working under JCT contracts often tend to store up their problems for the end of projects, by putting them to one side as they progress. The JCT could do more to address this, such as the way that the loss and expense procedure has been updated in the 2016 JCT form to require ongoing monthly assessments by the Employer of the loss and expense incurred by the Contractor.

Many thanks for your time Chris, and for your answers.

Along with Lisa Vernon, Chris has been one of two SME’s (Subject Matter Expert) for the JCT Academy - a suite of online classes for JCT Contract users content, produced by Built Intelligence, in association with Contract & Construction Consultants and Thomson Reuters and based on the JCT Contracts Discovery published in 2012.

To contact Chris or Lisa at Contract & Construction Consultants, please visit http://www.contract-consultants.com/en/contact or call +44 (0)117 925 9001 or email enquire@contract-consultants.com

 Chris Dean

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