Clancy Docwra v E.ON Energy Solutions  EWHC 3124, TCC
E.ON placed a sub-contract with Clancy Docwra for the installation of underground pipework relating to a substantial residential development in Central London. Clancy encountered adverse ground conditions including underground brick walls and brick rubble, requiring extensive extra work and hand digging. Clancy sought a variation, but E.ON maintained that sub-surface conditions were at the risk of the sub-contractor. E.ON relied on clause 2.17 of the sub-contract which provided the sub-contractor should be deemed to have inspected and examined the site and its surroundings, and to have satisfied itself before the date of the sub-contract as to the nature of the ground, the sub-surface and the sub-soil. An adjudicator ruled for E.ON, so Clancy asked the TCC for a declaration.
The court rejected E.ON’s submission that this clause 2.17 allocated all risk of ground conditions and other adverse site conditions on to the sub-contractor. The clause did not oblige Clancy to increase the agreed scope of work where the scope was clearly defined and items such as hand digging excluded.
This is quite a robust interpretation of routinely harsh main contractor’s drafting. The point may be that while such a clause makes the sub-contractor take the risk that an agreed task is more difficult, it may not operate to make him do varied work without an instruction and payment.
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