Interpretation, rectification and scope of works

Workman on site
Print this page Email a link to this page
twitterlinkedintwitterlinkedin

Clancy Docwra v E.ON Energy Solutions [2018] EWHC 3124, TCC

Facts

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.

Held

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.

Comment

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.

For more specialist legal advice contact our Construction & Engineering team.