The importance of consistency and care with clarification documents

In the recent case of John Sisk and Son Ltd v Capital & Centric (Rose) Ltd [2025] EWHC  594, the Technology and Construction Court considered the allocation of risk between the contractor (in this case Sisk) and the employer (in this case C&C) as to responsibility for existing site conditions. The Court addressed the proper integration of amendments to the JCT Design and Build 2016 which sought to qualify a condition on allocation of risk by reference to wording contained in technical documents such as the Employer’s Requirements. 

Background

The case related to a project for the design and construction of two new residential buildings, along with the refurbishment of two listed mills. During the works, issues arose around the suitability of the existing structure of the mills for which Sisk claimed extensions of time and additional costs for works required to secure the structure. The parties disagreed over who was responsible for the risks associated with the existing structures on the site.

The parties had entered into a JCT Design and Build 2016 contract with amendments. A new clause 2.42 was incorporated to ensure that Sisk was responsible for all risks in relation to the existing site, including the risk of the existing structure of the mills. However, clause 2.42.4 provided an exception, qualifying the risk by making it subject to clarification documents set out in the Employer’s Requirements. 

A dispute arose between the parties as to the clarification documents as the documents appended to the contract were inconsistent and unclear. The electronic and physical versions of the clarification documents did not align. The electronic version of the contract contained two clarification documents: one being a worksheet headed “contract clarifications” and the other being a worksheet headed “tender submission clarifications”. In the physical copy of the contract, however, there was only the worksheet called “contract clarifications”.

The “contract clarifications” document indicated that existing structures were a C&C risk whereas, the “tender submission clarifications” was consistent with clause 2.42 and allocated the risk associated with the existing structures to Sisk. 

Contract Clarifications

For those unfamiliar with clarification documents, they are documents used to address ambiguities, inconsistencies and/or unusual aspects of a tender or contract, ensuring parties to a contract have a clear understanding of their obligations. 

Adjudication

The dispute proceeded to adjudication and the adjudicator found in favour of C&C as the employer. The adjudicator considered the proper interpretation of the contract and held that the responsibility lay solely with Sisk as per clause 2.42 and the tender submission document.

Part 8 proceedings 

Sisk brought proceedings seeking court declarations that the risk associated with the existing structures lay with C&C as the “tender submission clarifications” document “merely recorded the initial qualification and some history of negotiation”, whereas the other clarification document “recorded the final contractual position”

The decision

The court said that the contract was clear, that clause 2.42, while expressly making Sisk liable for risk in the existing buildings, was subject to the “contract clarifications” document. The “tender submission clarifications” document was a valid contract document but it only recorded the initial stage of the contract negotiation process, the document was not itself a contract clarification and provided a “limited” (though significant) carve out from clause 2.42.

The court concluded that that the “tender submission clarifications” document was not the relevant clarification document for the purposes of clause 2.42.2. Therefore, the existing structures was a C&C risk as set out in the “contract clarifications” document.

Key takeaways

This case serves as a valuable lesson for all involved in construction contracts. The decision highlights the importance of:

1. Clear Drafting: this case demonstrates the necessity of clear and unambiguous drafting in construction contracts. The parties had included clauses to allocate risk, but inconsistencies existed between various documents. Clear drafting should be used at all times, especially in respect of key risk areas such as the allocation of ground risk.
2. Risk Allocation: parties must be explicit about risk allocation, especially in complex projects involving existing structures and ground conditions. Clearly defined responsibilities can prevent disputes and ensure smoother project execution.
3. Consistency and Incorporation of Documents especially between physical and electronic copies: it is important to properly incorporate all relevant documents into the contract. Ensure that all contract documents, whether electronic or physical, are consistent and accurately reflect the agreed terms. Parties should pay attention when compiling contracts electronically, as is common practice in the industry with the use of DocuSign, to avoid uncertainties around proper incorporation of documents and inconsistent use of technical documents.

In short, parties should ensure that they are happy with all of the contract documents, not just the legal terms and conditions. The case emphasises the importance of ensuring clarity, consistency and precision in contractual agreements to avoid disputes.

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