The JCT have announced, that their Design & Build suite of documents is being reissued on 17 April 2024. These are available to pre-order now, and a tracked version showing the changes to the last reissue – the 2016 Edition can also be obtained.
There will be an online launch event on 1st May 2024 to explain the changes in more detail. In the meantime however, based on the JCT’s announcement last summer, we understand that the changes will include the following:-
- Building Safety Act 2022 (BSA) – now that a raft of secondary legislation has been issued in the 2 years since the BSA first became law the contract will reflect the new statutory regime introduced by the Act. This is likely to cover the new ‘gateways’ for higher-risk buildings, the new statutory duty holders and their competence, golden thread info etc.
- Gender Neutral - the contract is finally going to adopt gender neutral language for the first time, which will bring it into line with the various industry standard consultant appointments, and the FIDIC and NEC forms of building contracts.
- Electronic execution – to reflect the shift to third-party digital signature providers such as DocuSign as the standard method for getting contracts executed during the pandemic, the contract will expressly provide for electronic signatures and electronic notices.
- Insolvency – there will be 2 additional insolvency grounds entitling a party to terminate, reflecting the Corporate Insolvency and Governance Act 2020.
- Additional ‘Relevant Events’ for an extension of time - these will cover epidemics and updates to the exercise of ‘statutory powers’. ‘Statutory undertakers’ will be redefined as ‘statutory providers’. The time for an employer to assess interim extension of time claims will also reduce from 12 to 8 weeks.
- Expanded ‘Relevant Events’ that are also ‘Relevant Matters’ for claims for loss and/or expense - these will now include unexploded ordinance, contaminated materials and asbestos.
- Building Regulations – the contract will reflect the insertion of a new Part 2A under the Building Regulations (Amendments etc.) (England) Regulations 2023. This Part 2A contains detailed requirements on employers to appoint designers and contractors who are competent and new duties for the clients, designers, and contractors which came into force on 1 October 2023. The update to the regulations themselves links in to changes under the BSA.
- Liquidated Damages – following the Supreme Court’s decision in the case of Triple Point Technology Inc v PTT Public Company Ltd the contract will enshrine the principle that where the works have not been completed when the contractor’s employment is terminated, liquidated and ascertained damages may only be levied up to the date on which the contractor’s employment is terminated. After termination, only general damages will apply.
- Payment due date after Termination – there will be an additional due date for the final payment after any termination.
- Fluctuations provisions – the contract will apparently include the new JCT ‘Fluctuations Hub’ to maintain the option for fluctuations provisions to apply. The fluctuations provisions will move to an online document.
- Supplemental provisions – certain previously optional provisions will now be included in the main body of the contract - e.g. those relating to collaborative working, sustainable development and environmental considerations.
- Adjudication and disputes – we understand that in addition to the usual list of nominating bodies, parties will also be able to select a nominating body or appointer of their choice in the particulars.
Given that it has been 8 years since the last JCT update, with so much having happened in the construction industry during the intervening period, including the massive changes introduced by the BSA, it is likely that the JCT 2024 will be taken up more quickly than the 2016 form was when it was issued.
So if you are a developer currently using the JCT 2016 Design and Build form, it will soon be time to update your precedents.
