In April this year, the Joint Contracts Tribunal (JCT) announced the release of the 2024 Suite of Contracts, which set out the responsibilities of all parties during a construction process and their obligations. David Vayro, partner in our construction team, looks at the key changes coming that are coming into effect.
Anyone expecting to see the many foibles and inconsistencies in the JCT suite of contracts being addressed in a coherent and structured way should steel themselves against inevitable disappointment.
What’s changed?
The changes seem, in the main part, to be reactive rather than proactive. There is nothing inherently wrong with reactivity, but where we have a contract suite with a number of inconsistencies, over-complexities and inadequacies, some root and branch pro-activity would have been welcome.
Another place and another time for those issues, however. Here we are picking out the top changes in the 2024 release. In we are using the word ‘top’ in strictly relative terms, and they are listed in no particular order.
E-signatures and digital comms
The 2024 suite drags itself in to the 21st century by acknowledging that contracting parties now rarely all sit down in a room and execute hard copies of the documents together. DocuSign and its many successors are here to stay and the JCT 2024 suite reflects that.
Extensions of time/ Loss and expense
Unsurprisingly epidemics are now a “thing” and – in these ecologically aware times the discovery of asbestos, contaminated materials and even unexploded ordnance are now relevant events/ matters for the purposes of EOT and loss and expense.
ESG
Also, within the greening of the JCT suite of contracts is included a focus (if that is not too strong a word) on sustainability and environmental impacts.
However, the limited extent and generality of the provisions will inevitably mean that the industry which has grown out of the amendment of JCT contracts is not yet quite out of work.
Good faith
The provision which will do the most to feed that amendment industry must be the mandatory imposition of a duty of ‘good faith’.
It is not, however, a duty of good faith imposed from above which promotes the development of trust and respect between contracting parties.
As with the fate of the JCT fluctuations provisions in the low interest years, this new drafting is more likely to be honoured in its deletion, rather than in its inclusion, to misquote that well known phrase.
Building Safety Act 2022
The BSA 22 amendments are aimed at satisfying the requirements of the duty-holder regime and don’t attempt to grapple with the implications of the act more broadly.
Again, inevitably a target for extensive amendment.
Employer termination
As if employers did not already have sufficient pretexts for bringing unsatisfactory contracts to an end, they benefit from two new (albeit limited) grounds in the JCT 2024 Amendments.
New contract family – JCT Target Cost Contract
Last but not least, the 2024 Suite introduces an entirely new family of contracts, The Target Cost Contract.
Properly procured, Target Cost contracting could do more for collaboration and ‘good faith’ in the construction industry than any iteration of the abstract concept of “good faith”.
Collaboration is born out of shared goals and needs, and Target Cost contracting can escape the corrosive and paralysing effect of the parties each ‘owning’ identified risks.
In short, these amendments (and the new families organisational structure) are reactive and unimaginative. They are not especially onerous or negative in character, but neither are they the root and branch contracting reform that the industry desperately needs.