Practical Completion – How Is It Defined & When Does It Occur?

So What Constitutes ‘Practical Completion’?

The answer really depends upon the form of contract under which the works are being delivered. However, the general understanding across the industry is that Practical Completion (or ‘PC’ as it is also known) marks the end of the Substantive Works and the commencement of the defects liability period.

Whilst the term is recognised by most construction industry professionals, few truly understand the meaning that sits behind it.

Certain contracts including the NEC provide clarity as to when ‘Completion’ is deemed to have occurred and is prescriptive in terms of the ‘Take Over’ process.

Not all contracts however, make sufficient provision and that is when problems can arise…

The Case

The recent case of the University of Warwick v Balfour Beatty Group [2018] EWHC 3230 (TCC) gives a guide as to how the court can consider issues which may arise.

The contract between the parties was an amended form of the JCT 2011 Design and Build (the “Contract”) for design and construction works of the National Automotive Innovation Centre within the UOW’s campus (the Claimant).

The contract made provision for Practical Completion which was defined as “[…] a state of completeness […] which allows the Property to be occupied or used […]”. Further provision was made for “Property” which was defined as “the property comprised of the completed Works”.

So What Could Possibly Go Wrong?

The Works comprised of four sections, all of which had a possession date of the 20th April 2015 and the Date for Completion was 10th April 2017 for sections 1 to 3 and 5th July 2017 for section 4.

It was the position of the Defendant that due to the definition contained within the contract “[…] a state of completeness […] which allows the Property to be occupied or used […]”, Practical Completion could not occur until all sections had been completed, as it was at that point the Property could be occupied. The Defendant therefore argued it was not possible to achieve Practical Completion of the sections prior to Practical Completion of the whole of the works.

The Court disagreed. Mckenna J. held that it was necessary to apply common sense to the Contract and as such, the Practical Completion requirements related to the specific section under construction and did not relate to the whole of the Works.

In addition, the Court further set out the Contract made specific provision for the requirements of sectional completion throughout and as such, it was necessary to apply business common sense.

So What Lesson Should We take?

We take two key lessons from this particular case, the first is in respect of drafting clauses which relate to Practical Completion.

Lesson One:

It is key to ensure there is no ambiguity as to the completion of the works and ensure no elements of the wording are ‘open to interpretation’, especially where the Works are to be delivered in sections.

Lesson Two:

The second lesson is to make sure Practical Completion is defined within the Contract to ensure there is no question by the parties as to when this has been achieved.

For further support or guidance in relation to Practical Completion, Delays or any other Construction Contract issue or dispute, please contact our team of experts on or 0115 9336131.

#practicalcompletion #constructioncontracts #constructiondisputes #constructionlaw #quantitysurveying

Who Carries The Ground Risk? – The contractor? Not in this case…

Clancy Docwra Ltd (“CDL”) v E.ON Energy Solutions Ltd (“EON”) [2018] EWHC 3124

As some of our followers may be aware, a chapter of my contracting career was spent as the Managing Director of a nationwide trenchless contractor. I have therefore led many disputes concerning unforeseen ground conditions and as such am an avid follower in the ever-changing legal landscape (forgive the pun) of ground risk allocation.

It is the default position at common law that the risk of unforeseen ground conditions is carried by the contractor. The risk can, of course, be redistributed using amendments to; or with additions of express provisions within the contract.

That said, amendments and the interpretation thereof, can bring their own problems. That is why the case of Clancy Docwra Ltd. v E.On Energy Solutions [2018] EWHC 3124 immediately caught our attention.

So what happened?

Under an amended form of the JCT sub-contract, CDL was appointed by Eon to install pipework for an underground district heating network at the Barts Square development in central London.

The works scope included the excavation of trenches and the installation of pipework to accommodate the new asset.

During the works, CDL encountered unforeseen ground conditions which delayed the project substantially.

EON took the position that the ground risk was carried by CDL, a position which CDL rejected.

A dispute arose and was taken to adjudication and further presented to the courts.

CDL stated that when interpreted properly, the sub-contract set out that ground risk was not carried by them.

The court proceeded to interpret the sub-contract reviewing the terms in detail.

It was found that the issue of ground had been subject to lengthy tender discussions and pre-contract correspondence, some of which had been incorporated into the sub-contract under the numbered documents.

Interestingly these numbered documents were described as “a diffuse collection of documents elating of a wide range of matters”.

EON presented there had been bespoke amendments to the JCT form of sub-contract which set out:

– CBL was deemed to have inspected and examined the site and to have satisfied itself before the date of the sub-contract as to the nature of the ground, the sub-surface and subsoil.

– CBL was not entitled to any extension of time or any additional payment on the grounds of any misunderstanding or misinterpretation of any matter falling with (a) or CDL failing to discover or foresee any risk, contingency or other circumstances (including, without limitation, the existence of any adverse physical conditions or artificial obstructions) influencing or affecting the sub-contract works;

– CBL would not be released from any of the risks accepted or obligations undertaken by it under the sub-contract on the ground that it did not or could not have foreseen any matter which might affect the execution of the subcontract works.


– Eon did not warrant that any information provided to CDL was accurate, reliable or complete.

By reliance upon the bespoke amendments within the JCT sub-contract, EON maintained the ground risk remained with CDL and this was not amended by the inclusion of or the reference to the numbered documents forming part of the sub-contract.

So, what did the court conclude?

The court did not agree with EON.

The court took the approach that it was necessary to first ascertain what the parties had contracted.

It was established that CDL had contracted to undertake the sub-contract works as defined by reference to the numbered documents.

Within the numbered documents were tender clarifications issued by CDL in which they set out what the scope included (and the scope excluded).

Examples of scope exclusions were “breaking out rock”.

The court decided that it would be nonsensical for the bespoke amendments to be applicable to matters which were not part of the sub-contract works scope.

The position was therefore, that the parties had agreed to the scope of works (within the numbered documents) and the amendments then applied to the scope.

What lessons can we take?

This ruling surprised many as, at first glance, it looked like ‘just another’ ground dispute. However following a detailed review of the ruling, it becomes clear the courts have applied logic based on how the contract has been compiled, and there lies the lesson…

Parties need to take care when compiling contracts and especially when incorporating numbered documents and amendments.

The key element in this case which really stood out was the fact that the amendments to the JCT subcontract, which are fairly standard in terms of transferring all risk to the subcontractor, were not effective as the numbered documents were given effect so as to define the scope and transfer the risk to the employer.

For more information regarding ground risk and disputes, contact our team or 0115 9336131.

Please note. The information provided on this website is NOT LEGAL ADVICE and is for information purposes only. No action or inaction should be taken due to this information or any reliance placed upon this information. Please note where legal advice is required this should be obtained by an appropriate qualified legal practice and no information provided within this website should form the basis of any legal, contract or commercial decision. K J Taylor Consulting Ltd. are commercial quantity surveyors and not construction legal advisors.

How to Ensure You Make a Loss in the Construction Industry (In Six Very Easy Steps)…

As most Contractors are aware, the construction industry is a challenging market sector in which it really is quite simple to lose money.

With the collapse of Carillion and harsh market conditions in 2018, 780 companies fell into insolvency in the first quarter alone [1].

In a bid to provide certainty, in this blog we wanted to set out six key steps for you to follow to ensure failure within the industry.

Step One – Do Not Compile a Cost Plan
A robust cost plan is one of the key building blocks to facilitate the successful delivery of a construction project.

Following a cost appraisal, a cost plan is compiled by the quantity surveyor or cost consultant to set out the construction costs of the project.

The cost plan is a live document and will develop in detail and accuracy over the lifecycle of the project.

If you want to ensure the project runs over budget, potentially to the point whereby it can’t be completed due to lack of funds, ensure you don’t create a cost plan.

Step Two – Do Not Review Construction Contracts or Negotiate the Terms
Not reviewing the construction contract (i.e. sign it, put it in the draw and hope for the best) is a sure-fire way to find yourself in dispute with the client.

By blindly signing on the dotted line; main contract terms (which you haven’t even seen) become binding, Liquidated Ascertained Damage levels (you may not be able to afford) may be levied against you and risk conditions which you wouldn’t have accepted (in a million years) if you had known, are carried by you.

Further, having negated to review the contract; you don’t need to negotiate the terms. After all, for a project to be successful; the terms of the contract should reflect the tender offering and the subsequent acceptance of that offering.

So, if you want to fail in contracting; ensure you do not have a quantity surveyor review the contract document to ensure the terms reflect your intended offering. Just proceed on the basis of the contract proposed by the client.

After all, it’ll save you a couple of hundred pounds if you don’t have it reviewed. It’s worth it, right?

Step Three – Do Not Compare Tenders. Accept the First Price
Another good way to ensure losses within the construction industry is to not test the market when procuring materials or services. Do not obtain a minimum of the three comparative quotations/tenders to ensure value, just accept the first price received.

Furthermore, ensure a quantity surveyor does not assess the quotations to confirm they are comparable in terms of inclusion and presentation`.

This will ensure the best price is not obtained and will guarantee you do not receive the best value.

Step Four – Ensure you accept verbal instructions (no written instruction required…)
“The site manager said just get on with it and they’ll sort the paperwork later… he’s a good guy, it’ll be fine”, sound familiar?

To ensure you don’t receive payment for variations, act on verbal instructions without obtaining written confirmation as set out within the contract (remember the contract you didn’t read in step two?).

This will ensure any work you deliver outside of the scope of the works is carried out at your own cost.

Step Five – Pay No Attention To the Construction Programme (Just Keep One Eye On The End Date).
If you want to pave the way to an unsuccessful project conclusion, ensure you pay no attention to the construction programme.

Pay no attention to key dates or activity sequence.
Keep an eye on the completion date and if you miss it, wait to see what happens (hopefully nothing).

Step Six – Do Not Employ a Professional Quantity Surveyor
Professional Quantity Surveyors provide a multitude of support services (see our previous blog (here) including:

– Monitoring Budget & Forecast
– Preparation of Applications / Valuations / Payment Certificates
– Assess and Measure Works Delivered and Variations
– Administer Programme Amendments
– Control Cost
– Maintain Ongoing Value Engineering
– Provide Project Management
– Manage Disputes
– Advice on Contractual Disputes

The steps outlined above are just a few of the ways in which a construction contractor can ensure they deliver a construction project over budget, potentially over programme and at a loss.

Alternatively, where you wish to ensure the successful delivery of projects within the industry, ensure you DO NOT follow these steps.

Should you require support in any of the areas listed, contact us at or call on 0115 9336131.

[1] The Guardian Online report. Monday 1st October 2018.

Who are you contracting with?

Contracting Parties – Who are you contracting with? – Are you sure? (Read on…)

The Scenario:

The parties are engaged and the project is going well until unexpected ground conditions pose a risk to the design.

Consequently; an independent third-party designer is engaged and contracted to provide a solution.

Sounds straightforward right?


Introducing the recent case:

Williams Tarr Construction Limited v Anthony Roylance Limited and Anthony Roylance [2018] EWHC 23

The Project: A Housing Development in Cheshire
The Main Contractor: Williams Tarr Construction Limited (WTC)
The Designer: Anthony Roylance Limited OR Anthony Roylance (And here lies the problem)

So who were the contracting parties?

WTC believed they had engaged Mr. Roylance in his capacity as an individual.

Mr. Roylance maintained WTC had contracted with his limited company Anthony Roylance Ltd.

And the Scope?

WTC set out Mr. Roylance had been contracted to design a solution to overcome the problems with the wall so that the wall would ultimately be fit for purpose.

Mr. Roylance stated the engagement had been limited to the scope of a design for the drain for the wall and maintained he had not designed the wall nor did the company carry the obligation to ensure the wall was fit for the purpose intended.


The courts considered the relevant correspondence between the parties in a bid to establish the parties to the contract, the basis of engagement and the scope of the parties.

The documents were found to be unclear which introduced further complexities with WTC producing alleged “design documents” which had been produced by Mr. Roylance with Mr. Roylance stating these were “as-built” drawings for record purposes.

WTC went on to state in the most part, the documents were that of Mr. Roylance acting in his capacity as individual as he did not use company headed paper which documented his limited company.

Mr. Roylance presented that the payments were processed through the limited company and the contractual draft collateral warranty produced by WTC made clear reference to the registration number of Anthony Roylance Ltd.

The key lesson from this case is to ensure the contracting parties and the scope of works is clearly defined within the contract to avoid confusion should a dispute arise.

Taylor Consulting – Who are they?


KJ Taylor Consulting is led by Kelly Taylor, a qualified Quantity Surveyor, Commercial Consultant and training Adjudicator.

Having held appointments within the construction industry as Managing Director, Financial Director and Commercial Manager for the last 17 years, Kelly carries a vast experience with projects of varying sizes in most sectors including Petrol Chemical, Nuclear, Rail, Airports and Utilities.

Having worked for a large scale Plc. and utilities company between 2011 and 2015 and having held the responsibility of resolving their largest construction disputes, Kelly held an employed 100% track record or resolving disputes (many of which were six figure accounts) amicably whilst maintaining the client contractor relationship.

KJ Taylor Consulting Ltd. was incorporated in 2016 with a key focus of providing commercial support to construction companies across the UK, specifically specialist contractors.

I recently worked with KJ Taylor Consulting Ltd to review and negotiate a problematic Framework contract and provide representation at Client meetings
Kelly has a detailed and thorough understanding of NEC frameworks and is an outstanding communicator who remains impartial, focused and objective, particularly under pressure and in stressful situations. Her Contract expertise, knowledge and professionalism delivered outstanding results.

Quite simply Kelly is the difference between success and failure. I have no hesitation in recommending Kelly who goes that extra mile to get results
Kelly is an accomplished lecturer and provided ‘in house’ training on the NEC contract. I was impressed with the level of enthusiasm, knowledge and useful techniques provided during the day

From her extensive commercial experience and P&L responsibility, Kelly is not only able to make the NEC 3 Engineering and construction contract relevant and pragmatic; she makes it fun, interesting and memorable.
Sean Kelly
Director Of Customer Service

Kelly is an exceptionally astute, passionate and commercially adept individual who has a phenomenal knowledge about the construction sector. Her understanding of NEC frameworks coupled with her commercial and financial skills serves to benefit those who have the sincere pleasure to work with, opposite and alongside her. She has a clear, methodical and inclusive approach to working which makes working with Kelly fun, educational and successful.

Gareth Brewerton
Group General Counsel, South Staffordshire Plc.

NEC4 – The Next Generation Has Arrived – (However are you still getting to grips with NEC3?)

Following the March 2017 announcement by the NEC, it has been confirmed that the future of NEC has been reshaped with the introduction of NEC4.

NEC has listened to the extensive feedback from the industry and made the necessary changes to align commercial intentions with workability and operational delivery.  In addition, they have added a number of new contracts to bridge the gaps where necessary.

New Additions A significant change includes the introduction of new forms of contract including the NEC4 Design Build Operate Contract (DB0) and the Alliance Contract (ALC).

The DBO contract will allow users to procure a more integrated delivery solution by linking the various functions (design, construction, operation and maintenance) for a project life cycle solution from a single supplier.

The ALC (currently under consultation) is intended to provide a solution for users who wish to fully integrate the delivery team for large complex projects.

New Features In addition to the new forms of contract; new features have been introduced to the suite including a process for identifying opportunities to improve the outcome of the project (this is about collaboration and efficiency after all!).

The PSC, TSC and SC contracts will now use defined cost in the same way as the ECC; introducing congruence throughout.

New provisions have also been introduced into the ECC to further support the design and build method of delivery.

The NEC4 also introduces a new escalation period for dispute resolution prior to formal proceedings.

These are just a few of the changes which the NEC4 will bring, but are you still getting to grips with NEC3 and the contractual procedures that need to be followed?

If so, we are here to support.  Here at KJ Taylor Consulting we provide training, support and advice regarding the delivery of works under the NEC suite of contracts.

Call us on 0115 9336131 for a no obligation free consultation or visit

NEC3 – ECC – To be kept out of the dark


What is it about contracts that make people want to hide them in the draw (without having actually read the document) in the hope that they will never have to read or refer to them again?

Why does the phrase ‘Refer to contract…’ strike fear into the heart of most construction individuals?

Is it the presumed legal ‘lingo’ which quite frankly has even the most intelligent individual reading a sentence three times in a bid to understand the basics of what is being said?

Cue…  The NEC3 Engineering and Construction Contract (June 2005)…

The NEC3 ECC (June 2005 Edition) (previously the New Engineering Contract) is not to be feared. It is to be become the process partner for contractors executing contracts.

The NEC3 ECC has been developed to be used in engineering, building and construction environments and has been written to meet the needs of contracting parties.