The event was chaired by Mr Justice Ramsey, the judge in charge of the Technology and Construction Court. The large audience heard a lively discussion on the differences between the contracts: specifically, the effect of the JCT and NEC provisions related to mutual trust and co-operation and good faith, why the forms are the way they are, assessment of matters during the works or upon final account, and the different approaches to completion.
Te debate was hosted by the King’s College Construction Law Association (KCCLA) and the publisher Sweet & Maxwell. JCT was represented by Professor Peter Hibberd, chairman of JCT and Peter Aeberli, a barrister, chartered architect and former joint secretary of JCT. The NEC was represented by Dr Jon Broome and David Thomas QC.
The audience heard how over nearly 80 years the construction industry had developed a range of contracts through JCT to meet the various procurement needs and different apportionments of risks. JCT products are the direct result of the consultations between the supply and demand sides of the industry and set the standard for building contracts by reflecting practice and changes to practice and facilitating change.
By contrast, NEC sought to establish that it offered a different approach that was designed for use as a proactive management tool, but accepted that in a strictly legal sense it is found wanting.
The question emerged as to whether one wanted a practice and procedure manual or a contract that would stand up to scrutiny. JCT contended that the principal purpose of a contract is to set out the rights and obligations and stand up to legal scrutiny; it was about certainty. It did not preclude the inclusion of procedure but felt that should not undermine the nature of the contract and generally matters of professional judgement are best left to professionals and not prescribed.
NEC’s attack centred primarily on what it saw as the outdated method of measuring or specifying building works in detail and the associated processes. JCT made the point that this was an attack on traditional processes and not on JCT, as JCT provides a wide range of contracts for use with different forms of procurement, including the novel approach adopted by JCT Constructing Excellence.
Although the chairman, Mr Justice Ramsey, drew out the point that there are those who are wedded to either JCT or NEC as both could be made to work, JCT contended that there will be those that will ask why we need another system when proactive management can work with any of the JCT contracts which the industry had already prepared and fine-tuned over the years.
According to the last RICS contracts-in-use survey – published in February – four out of five of all building projects, some 79.3%, use a JCT form of contract. By contrast, NEC contracts are used in 7.7% of building projects.
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