by Oscar Venus | 9 May, 2025 | Contractual and Legal
With recent figures revealing that the construction industry experienced the highest number of insolvencies over the past year, the resilience of the supply chain remains a priority, and Build UK’s contract terms recommendation identifies six contract terms which should be avoided to promote collaboration and ensure a fair allocation of risk
- Fitness for Purpose – Do not include a ‘fitness for purpose’ standard of care for design (except in the process sector)
- Unquantifiable Risks – Do not include delay/loss and expense risk where not reasonably ascertainable for dealing with asbestos; fossils, antiquities and other objects of interest or value; unexploded ordnance; and the carrying out by statutory bodies of work in pursuance of their statutory obligations
- ‘Specified Perils’ – Do not include that ‘Specified Perils’ (as defined in JCT) will not give rise to extension of time where caused by the (sub-)contractor
- Breach of Contract – Do not include a blanket indemnity for breach of contract
- Uncapped Liabilities – Do not include uncapped (sub-)contractor liability (save for certain aggregate cap carve-outs)
- Performance Securities – Do not use a pure on-demand performance bond; a Parent Company Guarantee (PCG) which does not include a ‘no greater liability’ clause and equivalent rights of defence; or a collateral warranty which does not include a ‘no greater liability’ clause.
Build UK have published comprehensive guidance to help implement the recommendation, explaining why each term should not be used and setting out ways to manage the underlying issues more effectively, with specific guidance for JCT and NEC contracts. The recommendation is non‐binding and FIS members are free to negotiate their own contractual terms with their clients.
by Oscar Venus | 24 Apr, 2025 | Contractual and Legal
Working with renowned, and self-proclaimed recovering, construction lawyer Sarah Fox, FIS is running an interactive workshop on Wednesday 7th May, 1.30pm – 3.30pm with the aim of creating a simple sub-contract built on the 500 words principle. Sarah has spent 10 years putting her idea into practice and drafting UK construction contracts starting with just 500 words. This work very much aligns to FIS Responsible No Campaign and our wider work on improving contractual practice and procurement in the sector.
At the heart of her work is a simple idea – simplification works. When you streamline deals and clarify terms you’ll save time, improve relationships, and avoid conflict.
The workshop will be held online, is limited to 12 people and we will be using existing (more traditional) Standard Terms created through FIS as the base and the principles of the Conflict Avoidance Process and set down the in the “Best Practice Guide: Improving Management of Building Contracts” to support the process (both available via our legal and contractual toolkit here). We will also be using an Artificial Intelligence Tool, Genie AI, to support the process and help understand and assess the potential of new technology in the process.
If you want a bit more background on the 500 Words Principles, Sarah’s website is here 500 Words and she did a cracking Podcast here.
by Oscar Venus | 10 Apr, 2025 | Contractual and Legal
At FIS, we’ve long advocated for better contractual practices and early intervention to help our members avoid the stress, cost, and disruption of disputes. That’s why we’re proud to share that one of our trusted consultants, Len Bunton, has recently been appointed President of the Conflict Avoidance Coalition.
Many of you will know Len through his work delivering contract reviews and offering wise, practical advice to FIS members on a wide range of contractual issues. He continues to be a strong advocate for fairness and collaboration in construction contracts, and his latest message is simple but important:
All FIS members should sign the Conflict Avoidance Pledge. You can do so via the RICS website
What is the Conflict Avoidance Process?
The Conflict Avoidance Process (CAP) is designed to encourage early intervention when issues arise on a project—helping both parties find practical, collaborative resolutions before they escalate into formal disputes. It’s about protecting relationships, maintaining progress, and saving time and money.
We encourage members to go one step further and request that employers and main contractors include the Conflict Avoidance Clause in contracts. A sample clause is available and acts as a declaration of intent from both parties to resolve emerging issues constructively, without affecting their legal rights (including adjudication, if needed).
Why This Matters More Than Ever
With increasing pressure across the sector—particularly around payment terms and cash flow—contractual tensions can escalate quickly. Taking proactive steps now can help prevent those “bumpy rides” later on. By adopting the Conflict Avoidance Pledge and clause, you’re not only protecting your business but also supporting a wider industry shift towards fairer, more sustainable practices.
Need Support?
If you’d like to learn more or need help implementing this approach in your contracts, you can reach out directly to Len Bunton at len@buntonconsulting.co.uk.
FIS remains committed to helping members navigate the increasingly complex contractual landscape—and initiatives like this are a valuable step in the right direction.
by Clair Mooney | 2 Apr, 2025 | Contractual and Legal, Legal cases
The case of
Workman Properties Ltd v Adi Building and Refurbishment Ltd involved the
expansion of existing facilities at Cotteswold Dairy in Gloucestershire. The dispute centred on the design responsibilities under an amended JCT Design and Build Contract 2016, specifically regarding the completion of the design to RIBA Stage 4 and/or BSRIA Stage 4. This case sheds light on several important legal principles and underpins concerns raised by FIS regarding the impact on the levels of design completeness and greater risk being pushed into the finishes and interiors sector in the face of increased building complexity and concerns related to compliance and insurability in the architectural world. The key points of the case were:
- Design Responsibility
- The court clarified that the contractor, ADI, was responsible for completing the design to RIBA Stage 4/BSRIA Stage 4 (i). This decision rejected ADI’s argument that Workman Properties had warranted the design’s completeness.
- The judgment emphasized the importance of clear contractual terms in defining design responsibilities. It highlighted that the contractor must ensure compliance with the employer’s requirements, even if the design is incomplete at the time of contract formation.
- Contractual Interpretation
- The court underscored the principle that contracts should be interpreted based on their written terms rather than subjective intentions or pre-contractual negotiations.
- ADI’s reliance on pre-contractual exchanges and subjective understandings was deemed irrelevant and inadmissible. This reinforces the importance of relying on the contract documents themselves for interpretation.
- Suitability of Part 8 Procedure
- In another concerning aspect of the judgement, the court found that the adjudicators decisions were based on an incorrect interpretation of the contract. ADI had previously succeeded in adjudications related to design obligations and financial claims.
- The court emphasized that the Civil Procedure Rules Part was appropriate for resolving the dispute, as the issues were primarily legal and did not involve substantial factual disputes. In this the court rejected ADI’s contention regarding the relevance of pre-contractual negotiations and subjective understandings (the facts of the case).
- In doing this the court’s decision clarified the contractual position regarding design responsibility, providing a foundation for resolving future disputes efficiently (setting precedence).
This case serves as a reminder of checking the design and pricing risk when confronted with an incomplete design, the importance of precise drafting in construction contracts and the limitations of relying on external factors and secondary communications for adapting the principles set down in the contract.
by Clair Mooney | 2 Apr, 2025 | Building Safety Act, Contractual and Legal, Technical
As of 1 April 2025 Ministerial responsibility for all fire functions for construction will move from the Home Office to the Ministry of Housing, Communities and Local Government (MHCLG). The aim of this move is to bring greater clarity and accountability to fire and building safety.
Bringing these responsibilities together will strengthen coordination, improve policy implementation, and reinforce the government’s commitment to making homes, buildings and communities safer.
The change delivers on a key recommendation from the Grenfell Tower Inquiry’s Phase 2 report, which advised that fire and building safety should be overseen by a single department.
Following the publication of the Grenfell Tower Inquiry’s Phase 2 report on 4 September 2024, the Prime Minister acknowledged the failings that led to the tragedy and reaffirmed the government’s commitment to implementing the necessary reforms. This transfer of Ministerial responsibility for all fire functions to the Ministry of Housing, Communities and Local Government represents an important part of this work, and the government will continue to drive forward the necessary reforms to make sure a tragedy like Grenfell can never happen again.
The Minister for Building Safety and Local Growth who will be taking on responsibility for fire functions Alex Norris said:
“Ensuring the safety of people in their homes and communities is a top priority for this government. By bringing all fire and building safety responsibilities under one department, we are reinforcing accountability, improving coordination, and taking decisive action to protect lives.
“I would like to thank Dame Diana Johnson for her work in this important area. I look forward to working with fire and rescue services and key stakeholders to implement the Grenfell Tower Inquiry’s recommendations and drive forward the reforms needed to keep people safe.
“This is a significant step in delivering meaningful change, making our buildings safer, and strengthening our country’s resilience for the future.”
Policing Minister Dame Diana Johnson said:
“It has been an honour and privilege to serve as Minister for Fire.
“I would like to express my utmost gratitude to the brave firefighters in our fire and rescue services, who selflessly dedicate themselves to protecting the public from fire every day.
“I would also like to thank the government officials and stakeholders from across the sector I have worked with over the past nine months. Their drive to make the sector stronger has been invaluable and I am certain my good friend Alex Norris will also benefit from their advice.”
by Clair Mooney | 1 Apr, 2025 | Building Safety Act, Contractual and Legal
The Scottish Government published its response to the Grenfell Tower Inquiry Phase 2 Report. The response recognises that whilst operating to a different Building Regulatory environment in Scotland, the Scottish Government accepts all recommendations and will seek to use to implrement changes in Scotland.
The response confirms that the Scottish Government will continue to work with the Construction Quality Improvement Collaborative (FIS is already a supporter of the CQIC Construction Quality Charter and is encouraging members to do the same) to take forward work on industry culture, seeking to embed the principles that help to form a positive culture within industry through practice. It will also work with the Skills Working Group of the Construction Leadership Forum’s Transformation Board to establish the best approach to wider industry competence.
Alongside the response, the Scottish Government published its cladding remediation plan of action, which outlines the following key actions:
- an initial £10 million investment for those who have concerns about cladding to have their building assessed through a Single Open Call. This will be extended to cover mitigation and/or remediation works by the end of June 2025.
- finalising the Developer Remediation Contract and working with developers to accelerate progress with remediation.
- continue to take forward assessment, mitigation and remediation for properties for which the Scottish Government has taken the lead.
- continue to promote better communication with owners, residents and tenants.
Read the full response and Ministerial Foreword here.
