Comment
(b) One must be careful about adopting a peculiarly syntactical analysis of what words mean in this statute when it is clear that Parliament intended a wide definition. An agreement "for... the carrying out of construction operations" is a broad expression and one should be able, almost invariably at least, to determine from the contract in question whether it fits within those words, without what could be a straight-jacketed judicial interpretation. (c) Usually and possibly invariably, where one party to a contract agrees to carry out and complete construction operations, it will be an agreement “for the carrying out of construction operations”.
Amongst other things care should be taken when drafting the terms of a warranty to give effect to an intention to provide for (or not to provide for) a right of adjudication. If the intention is to provide for such a right this is best done by introducing an express adjudication provision (which will result in a contractual right even if there not a statutory right). If it is intended there be no such right, then the obligation being warranted needs to be drafted so as not to require the warrantor to carry out any constructions operations (essentially any work). But in addition the time at which the warranty is given (before or during or after completion of works) is a factor which needs to be taken into account as likely to influence the construction of the warranty.
The warranty in Parkwood includes the verbs “warrants, acknowledges and undertakes”.
The Abbey warranty did not use “acknowledges and undertakes”.
It was given 4 years after practical completion of the original works, 3 years after the settlement agreement and 8 months after the remedial works had been carried out and at a time when no further work was in prospect. This was a strong pointer against it being an agreement for the “carrying out of construction operations” within section 104 of the Act.
Rather it was a warranty as to a state of affairs past or future akin to a manufacturer’s warranty.
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