Allocating risk in amended JCT contracts: Lessons from John Sisk & Son Limited v Capital & Centric (Rose) Limited

In this article, we build upon the insights shared in our previous article, which outlined key considerations when negotiating standard form construction contracts, discussing lessons learnt from a recent case from the Technology and Construction Court (TCC) involving electronic and hard copy versions of the same document:

John Sisk and Son Limited and Capital & Centric (C&C)(Rose) Limited [2025] EWHC 594

Background to the dispute:

This case involved a JCT D&B 2016 contract for the design and construction of substantial works at Weir Mill, Chestergate, which contained substantial amendments.

A dispute arose as to who is contractually responsible for the risks associated with the ground conditions and the existing structures on the site, including their ability to support and/or facilitate the proposed works.

Prior to the proceedings, there had been an adjudication whereby the adjudicator found in C&C’s favour, concluding that “…the responsibility for ground conditions including the identification of the basements, structures, voids, compressed structural elements and obstructions under the existing West Mill was solely Sisk’s risk”.

As a result, this risk meant that Sisk was unable to claim an extension of time and/or any additional costs it incurred.

In a Part 8 claim, HHJ Stephen Davies held that on a proper interpretation of an amended JCT DB 2016, the risk of the unsuitability of existing structures was an employer risk. In doing so, the judge reached the opposite conclusion from the adjudicator.

Key contractual provisions and their interpretation

The dispute hinged on the interpretation of clauses 2.42.1 to 2.42.4 of the amended JCT contract and the relationship between those provisions and documents referred to as “Clarifications” in the Employer’s Requirements.

Clauses 2.42.1 – 2.42.3: Contractor risk

• Clause 2.42.1 provided that C&C gave no warranty or representation as to the condition of the site or the accuracy of any survey data provided;
• Under Clause 2.42.2, Sisk was deemed to have fully inspected and accepted the site conditions and the existing structures, without entitlement to additional payment or extension of time for any misunderstanding; and
• Clause 2.42.3 required Sisk to take sole responsibility for ensuring the suitability of the site and existing structures for the intended works, with no entitlement to extra payment or time for related risks.

Clause 2.42.4: A limited carve-out

• Clause 2.42.4 stated that the above provisions were “subject to item 2 of the Clarifications”.
• The term “Clarifications” was defined to refer to the “Contract Clarifications” included within the Employer’s Requirements.
• Item 2 of that document expressly stated that C&C bore the risk relating to the suitability of the existing buildings.

Conflicting documentation

An issue then arose due to the existence of two documents:

• The Contract Clarifications, which were included in the printed contract stated that the employer took on the existing structures risk; and
• The Tender Submission Clarifications, which was not included in the printed version of the contract but was present in the electronic version. This earlier document recorded a disagreement between the parties about risk allocation and noted the employer’s rejection of the contractor’s request for a carve-out.

C&C argued that the Tender Submission Clarifications formed part of the contract documents and supported the adjudicator’s conclusion. However, the judge disagreed.

The court’s findings

The court held that:

• The qualification in clause 2.42.4 applied only to the Contract Clarifications.
• The term “Employer Risk” in that document had a clear and unambiguous meaning, creating a limited carve-out to the otherwise wide contractor obligations in clause 2.42.
• The Tender Submission Clarifications were not part of the contract. They were not referenced in the contract documents schedule, nor was there any indication they were included in the contract by reference or by signature.

Key takeaways

As discussed in our previous article, when negotiating construction contracts, clarity and consistency remain important considerations, as well as the fact that parties cannot rely on negotiation history where this is not reflected in a proper interpretation of the contract. Building upon this consideration, the following takeaways are key in light on the Sisk v C&C case:

• Be wary of conflicting documentation
  • Ensure that all documents forming part of the contract are clearly identified and consistent.
  • Avoid relying on different versions of documents (electronic vs. printed) unless explicitly agreed.
• Confirm documentation in the contract: Always confirm what documentation is included and referenced in the executed agreement to prevent issues arising from different formats (electronic or printed).

Conclusion

The Sisk v C&C decision is a reminder for parties involved in construction projects of the importance of clarity and consistency in contract drafting. Where standard forms are amended, those amendments must be precise, and the inclusion of additional documents must be managed with care.