The Joint Contracts Tribunal (JCT) 2024 suite of contracts was released throughout 2024; starting with the Design & Build forms in April 2024 and eventually working down to the Measured Term Contract last November.

The 2024 suite of JCT’s was (in part) influenced by a raft of building safety changes brought in throughout 2022 and 2023 (including the Building Safety Act 2022), and has been followed by a tide of key construction law cases and government reviews. It would be an understatement to say it has been a busy year in all things construction.

In this insight, we recap some of the key developments in construction law and why they matter to registered providers. We also take a brief look at what is on the horizon.

JCT 2024- key changes from 2016

The JCT 2024 can be described as an evolution rather than a revolution from its 2016 predecessor. As such, the structure and principles of the 2024 suite of contracts has remained relatively similar, with such updates- although significant in places- being rather ‘lighter touch’ than some might expect.

We have previously released an Insight here outlining the key changes made by the JCT 2024 (focusing on the Design & Build version), however of note are:

• Introduction of Dutyholder Regulations (Part 2A of the Building Regulations 2010) roles. These have become mandatory since October 2023 and are named the same (although should under no circumstances be confused with) as the CDM Regulations 2015. From an RP’s perspective, this is crucial because if an RP (as ‘client’ under those Regulations) fails to appoint a Principal Designer and Principal Contractor under the Dutyholder Regulations, the RP is itself automatically appointed under the legislation.
•  Construction Playbook: some of the old ‘supplemental provisions’ from the 2016 JCT (such as collaborative working, and environmental considerations) have been integrated into the body of the 2024 contract, meaning that they automatically apply unless you remove them via a schedule of amendments. Depending on an RP’s preference for these provisions pre-2024, RP’s should be aware of these provisions and ensure their schedule of amendments template is updated accordingly to take them out if they are not desired.
• Extensions of time/relevant events: there is now a shorter time period for an employer to consider and decide on an extension of time/money claim from a contractor. There are also new relevant events and matters in relation to pandemics (following the discourse of Covid-19), and to expand the ‘change in law’ ground for extra time/money so that it covers any advice given by the Construction Leadership Council. Unexploded ordnances, contaminated materials and asbestos are now ‘relevant matters’ meaning that the contractor can ask for more money if they are found. It is crucial that RP’s review their specification/employer’s requirements against such matters to ensure that they are not allowing their contractor to claim additional time/money for risks which have already been allocated to the contractor.

BDW v URS (2025) – Defective Premises Act 1972

This was a key Supreme Court decision on the scope and applicability of the Defective Premises Act 1972 (“DPA”) (for un-inhabitable dwelling claims).

Perhaps the most interesting element of this case was that BDW (a developer/house builder) was making a claim against one of its design consultants under the DPA. Previously it was thought that the DPA was designed for use by employers/home owners- but the judgment in BDW v URS has now opened the door for developers to sue their own sub-contractors and design consultants.

 Whilst this fact may not directly affect RP’s, there are a couple of key points to note from this decision which RP’s must be aware of when considering their own claims:

• Even if an RP has not itself faced a claim (for example, from homeowners) for un-inhabitable dwellings, BDW v URS shows that a valid claim can be made against a liable party. RP’s should therefore be proactive in considering whether it has a claim against its developer under the DPA on the basis of public and reputational interest; and
• Developers can rely on the DPA, which may be relevant to some RP’s business models particularly where they are outsourcing their own development arms to assist local authorities or other joint venture programmes where the RP will not be the ultimate ‘employer’ or scheme owner.

Please visit our Insight here if you would like to find out more about the Supreme Court’s judgment.

Abbey Healthcare v Augusta (2024) – Collateral Warranties

Another Supreme Court decision brought us some clarity on the status of collateral warranties and how it interplays with the requirements of (and rights under) the Construction Act 1996.

This judgment made clear that collateral warranties are not ‘construction contracts’ for the purposes of the Construction Act 1996- with some caveats.

RP’s will be interested in this decision, particularly where they enter into land-led development deals, or JCT Design & Build contracts.

The judgment means that collateral warranties are not subject to the right to adjudication for any issues/disagreements under them- meaning that if an RP’s first port of call is to adjudicate, explicit provisions are needed.

The basis on which this judgment was given is that collateral warranties are security provided for an underlying agreement (appointment/sub-contracts) and therefore are not new ‘works contracts’. As such, the requirements/scheme for payment and adjudication rights under the Construction Act are not appropriate.

RP’s will need to be careful in how they draft a collateral warranty in order to prevent disagreements over the applicability of the Act, by ensuring that their collateral warranties are tied firmly and linked to the consultant’s/sub-contractor’s underlying appointment. Straying too far from the underlying agreement could render the Act applicable.

You can find out more about this case, and the ramifications it can still have, here.

Hexagon v Providence- Termination of JCT’s

Perhaps the most relevant to RP’s given it directly involved an RP’s JCT- and perhaps the most controversial of these judgments- is the case of Hexagon v Providence, which in summary related to the contractor’s right to terminate for repeated failure of an RP to pay in time under clause 8.9 of the JCT Design & Build contract.

The Court of Appeal made clear that where a ‘specified default’ (in this case, failure to pay in time) is repeated, a contractor has the right to terminate regardless of whether their initial default notice (for the ‘first offence’ so to speak) was resolved by the employer within the required 14 day period.

This judgment may have un-intended consequences of allowing a contractor to walk away in disproportionate circumstances; such as where an RP has twice been a day late or paid a penny less that the due invoice (to use extreme examples).

It should be noted that the decision has been appealed to the Supreme Court, and we eagerly await their judgment following hearing in November 2025.

In the meantime RP’s should be conscious of termination provisions in of their contracts and should specifically ensure that they consider amending the contractor’s termination rights to ensure that a default period is required for each breach of contract prior to terminating (even for repeated defaults).

You can find out more about the background of this case, and our thoughts regarding its controversy, here.

Vainker v Marbank (2024)

This was another DPA case and highlights how conscious RP’s should be to the benefits of DPA claims; in particular its new limitation periods (15 years prospectively and 30 years retrospectively (where building works completed on or before 28 June 2023) courtesy of the Building Safety Act 2022.

The key points from the judgment are as follows:

• DPA liability cannot be excluded/diminished under section 6 of the Act. Here, even a net contribution clause (which limits the liability of a contractor/consultant to the extent of damage they have actually caused where there are multiple perpetrators) was struck out for attempting to limit such liability;
• Damages are more far reaching than some commentators people initially thought. Once a claim is established under the Act, the measurement of damages is to place the property into a condition it should have been in had the original workmanship been carried out in a workmanlike manner. This arguably went beyond what the Act says in terms of simply making the building ‘habitable’ again- although a claimant still needs to show that the property is un-inhabitable in order to establish their claim.

Conclusion

As you can see from our (brief) roundup, it has been a very busy year in construction law and it’s set to be an even busier year ahead. Here are some of the key developments coming up:

• Grenfell Report Part 2/Government’s response: it is clear that the Government is working closely on the Grenfell report’s recommendations. We have already seen a shift in how the Building Safety Regulator works (moving from the HSE to its own body), and we could see a Construction Regulator being introduced soon.
• Definition of a High Rise Building (HRB): HRB’s are subject to additional scrutiny and legislative controls since the inception of the Building Safety Act (and ancillary secondary legislation). The Government has hinted that whilst they may not change the current definition of a HRB (18 metres/7 storeys with at least 2 residential buildings in England or a care home/hospital), we could be seeing secondary legislation which is aimed at increased scrutiny for higher-risk residents (regardless of the type of building they live in).
• Hexagon v Providence, as discussed above, is being appealed to the Supreme Court and we could have a decision by the end of this year.
• The Building Safety Regulator is still struggling with capacity and is currently taking upwards of 22 weeks (on average) to process Gateway 2 applications. It will be interesting to see how recent Government intervention (and increased recruiting/setting up of a fast track system) tackles the backlog.
• The Planning and Infrastructure Bill (2024-2025) will soon be making its way to the House of Lords (October 2025). You can find out more about this here.

How Capsticks can help

We are construction and building safety experts. We have extensive construction expertise and provide support to our clients from the development of their business case through to completion of the project. We work with our clients to support the development of their construction strategy and to appoint their professional team and build contractor.

We have experience of all of the industry standard form contracts such as NEC and JCT, as well as bespoke arrangements, sub-contracts, consultant appointments and collateral warranties.

To discuss how the decision in this could affect your projects, please get in touch with Spencer Vella Sultana or Wilton Thomas.