This article summarises the judgment of John Sisk & Sons Limited v Capital & Centric (Rose) Limited [2025] EWHC 594 (TCC) involving a Part 8 claim brought by the contractor Sisk against the developer C&C. The dispute concerned contract interpretation pertaining to a JCT Design and Build Contract 2016, with bespoke amendments. The core issue was the allocation of contractual responsibility for risks associated with the existing structures on the site, specifically their ability to support and facilitate the proposed works. His Honour Judge Stephen Davies found in favour of Sisk, concluding that under the contract, the risk of additional cost or delay arising from the state of the existing structures lies with C&C.
Background to the Dispute
Sisk and C&C entered into a design and build contract on 20 May 2022 for substantial works at Weir Mill, Stockport. The contract was based on the JCT Design and Build Contract 2016 but included extensive bespoke amendments.
A dispute arose concerning the interpretation of clause 2.42 of the contract, which generally placed risks relating to the site and existing structures on the contractor, and item 2 of the Contract Clarifications schedule which detailed the risk of existing structures. Following C&C’s rejection of Sisk’s claims for extensions of time and additional costs due to issues encountered with the existing structures, the matter was referred to adjudication, where the adjudicator found that the responsibility for existing structures lay solely with Sisk.
Relevant Contractual Provisions
The contract generally placed the onus on the Contractor to have inspected the site and satisfied themselves as to various conditions, including existing buildings and structures, and stated that the Contractor is responsible for ensuring the suitability of existing structures and dealing with any unforeseen matters without any entitlement to additional time or money. The relevant provisions of the contract are as follows:
Clause 2.42.1 states the Employer gives no warranty as to the condition of the site or existing structures.
Clause 2.42.2 states the Contractor is “deemed to have inspected and examined the Site and its surroundings and to have satisfied himself before the date of the Contract as to the nature of the ground, the sub-surface conditions and sub-soil… the form and nature of the Site, existing buildings, services, utilities or structures on, in and under the Site…”
Clause 2.42.3 states the Contractor “acknowledges that it shall be solely responsible for ensuring that the ground, the Site and any existing structures to be retained under or upon or adjacent to the Site are (or will upon completion of the Works) be suitable for the development…”
Importantly, Clause 2.42.4 states: “This clause 2.42 shall be subject to item 2 of the Clarifications“. The bespoke contract defines Clarifications as “The clarifications headed ‘Contract Clarifications’ contained within Volume 2, Appendix 2.9 of the Employer’s Requirements“.
Item two of the Contract Clarifications states: “Existing Structures Risk including ability to support / facilitate proposed works: The Employer is to insure the Existing buildings/works. Employer also to obtain warranty from Arup with regard to the suitability of the proposed works. Employer Risk. “
The Tender Submission Clarifications document is another worksheet within the same excel workbook as the Contract Clarifications. Under the Design Responsibility section, Item 2.1.02 relates to negotiations on existing structures risk and includes the final comment: “Confirmed in the meeting that this is to clarify the employer is to insure the buildings in line with JCT option C.”
Respective Positions on Contract Interpretation
Sisk alleged that item 2 of the Contract Clarifications explicitly allocates the “Existing Structures Risk” to the employer. This clarification overrides the general risk allocation in sub-clauses 2.42.1 – 2.42.3 in relation to existing structures.
C&C’s defence was that the Tender Submission Clarifications is a contract document and the position recorded in the Tender Submission Clarifications shows that Sisk’s attempt to transfer the existing structures risk was unequivocally rejected by C&C. C&C argued that it follows that the Contract Clarifications should be interpreted in light of this prior agreed position. In any event, it argued that the “Employer Risk” comment in the Contract Clarifications relates to the employer’s obligation to insure the existing buildings and obtain a warranty from Arup, not to the allocation of the underlying structural risk.
The Court’s Interpretation
The judge made clear that evidence of pre-contractual negotiations was generally inadmissible for interpreting the concluded written agreement, except in limited circumstances not applicable in this case (e.g., estoppel or rectification, which were not pleaded). He rejected C&C’s argument that the agreed risk allocation in the tender submission clarifications was an objective background fact allowing for its admission.
While acknowledging the Tender Submission Clarifications were part of the contract documents, the judge gave it less weight when interpreting clause 2.42.4 and the Contract Clarifications themselves. He highlighted that it was not specifically referred to in relation to clause 2.42 or the existing structures risk and appeared under the heading Design Responsibility.
The judge determined that the contractual definition of Clarifications specifically refers to the worksheet headed Contract Clarifications and not the entire excel workbook which also contained the Tender Submission Clarifications. This was reinforced by clause 2.42.4 referring to item 2 of the Clarifications which clearly corresponds to item two of the Contract Clarifications document.
He concluded that the words Employer Risk read in conjunction with the Sisk Clarification, clearly indicated that C&C was the risk owner for the suitability of the existing structures. He noted that this provides a limited carve-out to the otherwise broad risk allocation in clauses 2.42.1 to 2.42.3.
Further, the judge found that other Contract Clarifications (items one and three in particular), which explicitly allocated risks to the Employer using similar “Employer Risk” terminology, supported his interpretation of item two.
Conclusion
The court found that the Contract Clarifications effectively carved out the risk associated with the existing structures from the general risk allocation to the contractor. The judge placed significant weight on the specific wording of the Contract Clarifications, particularly the designation of Employer Risk, and found that this overrode the general provisions in this specific instance.
The decision underscores the importance of clear and unambiguous drafting in bespoke amendments and clarification schedules within construction contracts.
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