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Lawyers often gloss over technical construction documents: ‘too techie for us’, they say. At Mills & Reeve we believe that lawyers should review the technical documents because if the specifications contain a wrinkle or two, they can create confusion and undermine the ‘agreed’ risk profile. The recent case of Clancy Docwra Limited v E.ON Energy Solutions Limited illustrates this.
In the Clancy case, E.ON employed Clancy to carry out various groundworks. E.ON used a JCT sub-contract. It amended the standard form and passed ground risk to Clancy. During the works, Clancy encountered obstructions in the ground and it claimed more time and money. E.ON pointed to its whizzy amendment: Clancy takes ground risk. E.ON refused, therefore, to pay up.
Clancy argued that it was able to side step the whizzy amendment by pointing to the technical documents. They included pre-tender minutes which stated that Clancy’s price and the scope of works did not allow dealing with obstructions.
The court agreed with Clancy. It decided that that the technical documents fixed the scope of the works. Dealing with obstructions was excluded from the scope. The whizzy amendment, therefore, did not apply. Ouch! Clancy was entitled to additional time and money. Ouch!
The Clancy case reminds us that it’s important to review the techie documents to make sure that they do not contain any wrinkles. If you decide to take a short cut and adopt the “it’ll be fine” approach, this could change the risk profile. That could be costly. Ouch!
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