C O N S T R U C T I O N E M P L O Y E R S F E D E R A T I O N T H E V O I C E O F T H E I N D U S T R Y
CONOR MULLIGAN, SOLICITOR AT MILLS SELIG, EXAMINES THE LEGAL IMPORTANCE OF AGREEING
CONSTRUCTION CONTRACTS PRIOR TOWORKS STARTING… Delivered, sealed, signed
M ills Selig’s new engagement as patron of CEF has given us a real insight into the inner workings of the construction industry. Setting aside the incredible summer heatwave, the final of Euro 2020, the Tokyo Olympics, and of course, the more general challenges of the global pandemic, those in the construction industry have been, frankly, battered by spiralling materials costs and challenges around labour and skills availability. It was in this context that we were recently approached by a client who had started work on a site on the assumption that he was working under his own standard “T&Cs” which he had sent to his employer before the work started. His employer had other ideas and had asked him (after the works had started) to sign up to a more “formal” published form of building contract. We guided our client through that issue to help keep him and his client happy, but it reminded us of the relatively recent Technology and Construction Court case of Balfour Beatty Regional Construction Ltd v Van Elle Ltd. In this case Balfour Beatty was
engaged (as main contractor) for a construction project at a site in Newcastle-upon-Tyne. Balfour Beatty then engaged Van Elle (as sub- contractor) to undertake piling work. The key issue was that, like our client recently, the sub-contractor completed a large amount of the works after the contractor accepted the sub-contractor’s standard terms and conditions, but (crucially) before the parties agreed and executed a formal sub-contract. This is not an unusual occurrence, but it’s only when things go wrong with the works that legal issues can bubble to the surface. In this case, following completion of the works, defects were discovered in the piling works. Balfour Beatty duly claimed damages from Van Elle for breach of contract, but things got messy when the parties started to debate which contract governed the works. Ultimately, the Judge found that the formal executed contract superseded the sub-contractor’s own terms and conditions, but as with all cases of this nature, the documentary evidence proved pivotal – what
Conor Mulligan, Solicitor, Mills Selig.
36 | NI BUILDER
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