After spending nearly a decade renovating maisonettes and terraced houses and undertaking other basic redevelopment schemes a property developer – Primitive Projects LLP (‘Primitive’) – decides to go to the next level by becoming involved in the development of a mixed residential and retail development at a town centre location in Leicester. Primitive engages a firm of contractors that it has used in the past on its smaller-scale projects – Facile Fabrications Limited (‘Facile’). Primitive is not aware that whenever, in the past, Facile has been engaged to undertake larger or more complex projects it has botched them. Unaware of Facile’s chequered history, then, Primitive engages Facile on the basis of the JCT Design and Build Contract 2011 Edition (unamended).
The Leicester project gets off to a good start. Workable designs are produced and, overall, the contract documentation appears quite sound. All the required approvals, permissions and certifications are speedily obtained in accordance with building regulations and planning laws and construction work gets underway on the commencement date scheduled in the contract.
A major national supermarket chain – MetroMart plc (‘MetroMart’) – expresses an interest in opening a local town centre store in Primitive’s completed development because they are scaling down their involvement in out-of-town superstores and selling off sites previously earmarked for major development. After a month or two of ‘toing and froing’ between the lawyers Primitive enters into a pre-letting agreement committing MetroMart to a ten year lease of the largest of the four retail units at street level of the development. Under the pre-letting agreement MetroMart secures wide-ranging powers of supervision and approval of the evolving construction works and key aspects of the internal fitting-out of the large unit pre-let to MetroMart.
A week after the commencement date of the pre-letting agreement MetroMart sends its architect to the site for a spot-check only to discover that the work on the MetroMart retail space is not taking shape in a way that is even remotely in accordance with what was planned or contracted-for.
For instance, the architect describes the finished floor levels as ‘wonky’. Some parts of the floor are a full 200-300mm higher than other parts and seem to take the form of large, unwieldy ‘shapes’ – squares and rectangles. “Why can’t they lay a level floor?” the architect exclaims.
“And what’s with all these ‘shapes’? It’s not a children’s play area – customers are going to trip and fall; and the shelving and refrigeration units won’t have a level surface to sit on!”
But that’s not the only problem discovered. The architect also points out that inferior and/or inappropriate building materials are being used – for instance cheap lino in the back shop areas instead of hard-wearing floor tiling. None of this conforms to the drawings or specifications in the contract documents. Also low quality windows and entrance doors have been installed, with the doors appearing to be loose-fitting and jamming on opening and closing.
The architects for both MetroMart and Facile have no difficulty agreeing that decisive action is needed to address Facile’s obvious departures from the approved designs and the separate, but related, issue of the use of inferior or inappropriate materials and obviously shoddy standards of work.
In answering this part of the question students should initially assume that the parties most closely connected with the project take the view that existing contractual mechanisms will be robust and/or effective enough to provide a solution to the difficulties that have arisen to date.
Therefore, discuss and evaluate the options available to Primitive under the JCT Design and Build Contract 2011 Edition for requiring Facile to address and put right the issues identified by MetroMart’s architect. This should include applying relevant factual provisions to the key facts of the problem scenario and considering procedural steps needing to be taken.
In answering this part of the question students should assume that the issues identified by MetroMart’s architect are too fundamental to admit of a straightforward resolution by way of the standard contractual mechanisms available under the JCT Design and Build Contract 2011 Edition. It should therefore be assumed that a resolution can be pursued only by way of the remedies available under the general law governing breach of contract.
In the context of offering legal and contractual advice to Primitive (and, by extension, to MetroMart), therefore, discuss and explain the feasibility of holding Facile to be in breach of contract under the general law of contract on account of the fundamental nature of Facile’s departures from the requirements of the contract entered into between Primitive and Facile.
In your answer, among other things, include consideration of: (A) the legal remedies available under the general law governing breach of contract, and (B) the applicability to this factual scenario of the common law doctrine of temporary disconformity, such as it is.
[Note that an answer that attempts to apply contractual provisions or legal principles to the specific facts of the problem scenario will attract a higher mark than an answer that does not.]
Word limit for Section A Legal Problem: minimum 1,800 words
Critically evaluate the contractual position regarding variations of works in the JCT Standard Building Contract with Quantities 2011 edition, touching (among other things) upon how such variations impact on the employer’s payment obligation and on provisions of the contract allowing for extensions of time. Comment on how effective these contractual mechanisms are in practical terms. (For instance, you may choose either to make suggestions as to how these mechanisms might be improved upon – such as by drawing relevant comparisons with other types of standard form contracts (e.g. ICE, FIDIC etc.) – or show how the mechanisms as they currently stand are as effective as they possibly can be.)
Word limit for Section B Essay Topic: minimum 1,350 words