Architect and/or engineer.
An obligation come what may. cf. an obligation merely to use best endeavours or to exercise reasonable care. See the discussion at para. 1-239 above.
Something which needs to be done in a building project, and which is separately identified for the purpose of planning or Retrospective Delay Analysis.
This expression is sometimes used as a synonym for prime cost in a cost contract.
(i) In the widest sense, any judicial or quasi-judicial process operating otherwise than by default. The word is rarely used in this sense in the construction context.(ii) A quasi-judicial method of resolving disputes that falls short of litigation or arbitration; usually intended as a process that is both quicker and cheaper than litigation or arbitration. In this sense, defined by the Academy of Experts1 as “Exercise of a power delegated by contract to a third party to resolve disputes on an interim or final basis as they arise without recourse to formal arbitration or litigation”. Until the publication of the Latham Report2 and the Housing Grants, Construction and Regeneration Act 1996, adjudication was, in the construction context, principally used under clause 24 of the JCT nominated subcontract form NSC/4 (formerly clause 13B of the Green Form) for the purpose of determining the right of a main contractor to set off amounts against a subcontractor.
Person who resolves disputes under an adjudication procedure. Under the JCT set-off procedure, the adjudicator is usually a quantity surveyor, but is likely to be drawn from another profession in the wider context. Where there is more than one adjudicator, the adjudicators are usually known as a “panel” or “board”.
Alternative Dispute Resolution, a structured but non-binding method of associating settlement of a dispute, usually by means of mediation and/or mini-trial.
An agreement made between two parties who are already in dispute, whereby they set out the ADR procedure they will adopt in an attempt to settle the dispute. The ADR neutral is usually a party to this agreement.
A clause within a contract whereby the parties agree that, in the event of dispute, they will attempt to resolve that dispute by means of ADR.
Associate General Contractors of America, who produce a number of standard forms of construction contracts.
American Institute of Architects, publishers of the most important construction contracts in the United States.
Authorised Nomination Authority. A body authorised to nominate adjudicators in Australia under e.g. section 28 of the Building and Construction Industry Security of Payment Act 1999 (NSW).
Adjudicator Nominating Body. A body that selects adjudicators in the UK under e.g. paragraph 2(3) of The Scheme for Constrcution Contracts (England and Wales) Regulations 1998 (SI 1998 No. 649).
Now called search order, a form of civil search warrant.
Associated Owners and Developers: an American organisation that publishes a lump sum contract.
This usually means an application by a contractor or subcontractor for interim payment or for reimbursement of loss and expense (e.g. under clause 26.1 of the JCT contract).
CPR term for summons; see CPR 23.1.
(i) Generally, a person qualified to act as arbitrator, often an architect but sometimes an engineer, quantity surveyor or a barrister. Membership of the Institute of Arbitrators is common but not essential.
(ii) In particular, a person appointed as arbitrator pursuant to an arbitration agreement within the meaning of the Arbitration Acts 1950-96.
Defined by Part I of the Arbitration Act 1996 as “an agreement to submit to arbitration present or future disputes” (whether they are contractual or not).
(i) Generally, a person entitled to practise or carry on business under any name, style or title containing the word “architect”. In broad terms, this means someone with the initials RIBA after his name.
(ii) In particular, the architect with the contractual status under a contract to issue instructions and certificates as to various matters. He may or may not have designed the works; his function is to exercise control over the works as they proceed. Used loosely in this sense, “architect” can sometimes include any engineer, surveyor or supervising officer with this contractual function.
Articles of agreement
Usually means the articles of agreement which are to be found in the opening pages of the JCT contract.
Artists and tradesmen
Expression used in the old JCT contract to mean persons who execute work not forming part of the main contract. The expression was dropped in the 1980 edition. The “artists and tradesmen” clause can apply to statutory undertakers such as electricity or gas boards (see Henry Boot v. Central Lancashire New Town Development Corporation (1980) 15 B.L.R. l).
ats At the suit of
A well-worn but useful device for lawyers who wish the name of their client to appear first in the heading of their letters. Thus the claimant’s lawyers will write Smith v Jones, and the defendant’s will write Jones ats Smith.
The practice of a construction company subcontracting the whole of the work to another company within the same corporate group, designed to prevent the operating company being a head contractor for the purpose of the 2014 amendment to the New South Wales security of payment legislation; see post
American term for pendulum arbitration.
Basic and essential requirements
The 5 requirements for a valid adjudicator’ determination as identified in Brodyn Pty. Ltd. t/as Time Cost and Quality v. Davenport & Anor  NSWCA 394; Also known as the basic essential requirements. Now largely superceded by Chase Oyster Bar v Hamo.
Abbreviation for bills of quantities.
Bills of quantities
A full description of the amount of work necessary for completion of building works. In major projects, there are likely to be several volumes, and the bills will respectively deal with such matters as preliminaries, foundations, framework, etc. Bills of quantities have columns on the right-hand side of the page to allow the contractor to price the work. The Standard Method Measurement of Building Works sets out rules for the preparation and interpretation of bills of quantities.
Bills of variations
An account prepared at the end of the contract showing the effect upon the pre-agreed lump sum of variations to the works.
Synonym for the surety (e.g. under the ICE Form of Performance Bond). Often a bank or insurance company.
Build, operate, transfer.
Build, own, operate, transfer.
A site that was previously used for industrial or mining purposes.
Synonym for employer.
Local authority officer charged with ensuring compliance with Building Regulations.
This expression is sometimes used as a synonym for the employer.
This expression is sometimes used to describe a surveyor in general practice, in contrast to a quantity surveyor.
A contractors’ all risks insurance policy.
Case management conference
A hearing at which the court reviews case preparation, gives directions and seek agreements; see CPR Practice Direction 29, para. 5
A document, not normally to exceed 500 words, designed to assist the court at a case management conference; see CPR Practice Direction 29, para. 5.7.
Case Administration Unit of the TCC; see paragraph 3.7 of the TCC Guide
Sessions within an ADR process in which the neutral talks to one party in the absence of the other.
Construction Conciliation Group.
See Combined Dispute Board below.
The Centre for Dispute Resolution.
The person named in a contract as having power to issue certificates which have a contractual effect. In the JCT contract the certifier is either the architect (Private editions) or the supervising officer (Local Authorities editions). In the ICE contract the certifier is the engineer.
The Construction Industry Model Arbitration Rules.
A level of judge below that of puisne judge. Most TCC judges are Circuit Judges.
American terminology for Variation Order.
CPR term for Writ or County Court Summons; see CPR Part 7.
A quasi-professional person who carries on the business of drafting, negotiating and advising upon claims for the payment of money or extension of time under building contracts. Usually a quantity surveyor by training.
Clause 22 perils
A series of perils defined by clause 22 of the JCT (1980 ed.) including fire, explosion and flood.
Clerk of works
An appointee of the employer whose duty is to act as an on-site inspector. His powers to give instructions to the contractor are usually limited. Usually a builder by training.
Synonym for employer.
Case Management Conference. First procedural hearing at court after a claim has been issued
Combined Dispute Board
A Dispute Board that will act either as a Dispute Review Board or a Dispute Adjudication Board. See http://www.iccwbo.org/court/dispute_boards/id4529/index.html
A fee that is payable to an arbitrator, expert or barrister by reference to a hearing date which that person commits to make himself available for and which is payable regardless of whether such hearing in fact takes place.
An indemnity clause whereby the indemnitor indemnifies the indemnity only for that portion of a loss which is caused by the indemnitor’s negligence.
The completion of the execution of the work.
In the JCT form of contract (1980 ed.), the agreed date for completion as extended by the architect.
In the building industry, this expression most commonly means a partnership between two or more contractors which subsists for the purpose of one project only. The expression is also sometimes used to describe a joint venture between contractors, whether or not that joint venture is strictly speaking a partnership in the legal sense of the word.
Construction Change Directive
Term used by the AIA Contract for Variation Order in place of the earlier term “Change Order”.
A procurement system whereby the contractor acts as the employer’s agent, assisting the employer to enter into a series of trade contracts, and managing the whole design and construction process.
In addition to its legal meaning, this expression is often used to describe the project as a whole.
Synonym for bills of quantities.
This expression is generally used to describe the pre-agreed price for lump sum building works. In the JCT contract it has a particular definition which excludes VAT. The expression is not usually used to describe the sum that the contractor is entitled to at the end of the day; this is called the “adjusted contract sum” in clause 30.6.3 of the JCT contract.
The document in a design-and-build contract whereby the contractor sets out how he proposes to meet the employer’s requirements.
A contract where the contractor’s final entitlement is calculated by reference to the actual cost of the works, rather than by reference to a preagreed lump sum.
Cost plus contract
Synonym for cost contract.
Cost plus percentage
contract Synonym for cost contract.
The model conditions for the hiring of plant of the Contractors’ Plant Association.
The Civil Procedure Rules, which took effect on April 26, 1999 (UK)
A delay that causes or contributes towards a delay in completion of building works as a whole.
The path of those operations that are critical to completion.
Confirmation of verbal instruction, i.e. the confirmation by the contractor in writing of a verbal instruction of the architect (e.g. under clause 4.3.2 of the JCT contract).
(i) See Dispute Adjudication Board below
(ii) Dispute Avoidance Board. Essentially, a Dispute Review Board, but with an emphasis on preventing issues from escalating into disputes, rather than depending only on a resolution of disputes through formal reference for decision by the board.
Date for completion
In JCT form of contract, the date by which the contractor must complete if his time is not extended. cf.completion date.
Defects liability period
A “guarantee” period from practical completion within which the contractor must remedy any defects appearing in the works without charge. The expression has a particular definition under clause 1.3 of the JCT contract.
The technique of providing that a final certificate does not have final and binding effect as regards latent defects, thereby nullifying the effect of Crown Commissioners v. John Mowlem.
Sometimes means delay in the completion of the works that is the responsibility of the contractor.
Department of the Environment, Transport and the Regions (UK)
CPR term for discovery; see CPR Part 31.
A statement required in a list of documents; see CPR 31.10(6).
Dispute Adjudication Board
A Dispute Board whose decisons are binding in the same way as the decisions of an adjudicator. For ICC DABs see www.iccwbo.org/court/dispute_boards/id4529/index.html.
Dispute Avoidance Board
a dispute board with a particular emphasis on avoiding disputes, rather than merely resolving them
Dispute Review Board
A board of independent people – usually three but sometimes one – appointed for the duration of a contract – usually for a substantial project. The board makes prompt non-binding decisions as to disputes as they arise.
Loss and expense caused to a contractor by reason of breaches or failures by the employer or his agents that do not necessarily result in prolongation of the works as a whole.
Design, manage and construct.
Department of the Environment, forerunner to the DETR.
A sub-contractor other than a nominated subcontractor.
See Dispute Resolution Board above.
Department of Trade and Industry.
East Coast model
Newspeak for ADR
The rule that provides that general words are to be construed within the ambit of preceding particular words. Thus the expression “lions, tigers, pumas and other animals” would not be construed to include ants, notwithstanding that an ant is an animal. The ejusdem generis rule was found not to apply to a clause in JCT 63 in Henry Boot Construction Ltd v. Central Lancashire Development Corporation (1980) 15 B.L.R. 1.
A person who enters into a contract with a building contractor whereby he agrees to pay for building works. The expression is not usually used to include the employing party to a subcontract.
The document or document whereby the requirements of the employer in a design-and-build contract are defined. The employer’s requirements can be a simple written statement of what the employer expects the building to achieve, or a bundle of drawings, specifications and room data sheets, or anything in between.
Early Neutral Evaluation. The system occasionally used by the Commercial Court whereby a neutral, typically a judge, evaluates the likely result of the case if it were to proceed to trial.
(i) Generally, a professionally qualified civil engineer, structural engineer, heating and mechanical engineer, etc.
(ii) In particular, the person so named in an ICE of FIDIC contract.
Completion in every respect, exceptionally a condition precedent to payment.
Extension of time.
A person employed by a contractor to estimate the cost of proposed building works.
(i) A person who gives expert evidence in litigation or arbitration.
(ii) The expression is sometimes used to describe a person who decides some matter between two parties, but whose position is not that of an arbitrator within the meaning of the Arbitration Acts.
Method of calculation of a contractor’s on-site losses following prolongation. Widely thought to be fallacious.
Synonym for extra work, that is to say extra work required to be carried out by the employer, or the architect on behalf of the employer, not included within the original contract work.
Third or fourth party proceedings whereby the loss is claimed back against the plaintiff or an employee of the plaintiff.
The calculation of the sum due to the contractor in respect of the contract as a whole. The expression is used as an abbreviation for the computation of the adjusted “contract sum for the works”, referred to in clause 30.6.3 of the JCT contract.
(i) Where the cost of being kept out of money is claimed, not as interest on a debt, but as a constituent part of the debt. It is now fashionable to refer to it as financing charges, or finance charges, following the language used in FC Minister v. Welsh HTSO (1980) 13 B.L.R. 1.(ii) Less delicately, a synonym for interest.
(iii) The expression is sometimes used to refer particularly to delay in the release of retention money.
Adjustments to a contract sum that fall to be made by reason of increases or decreases in the cost of the works.
Football Pools Order
An order for costs that is not to be enforced without the leave of the court. For guidance on the use of postponement of costs issues in legal aid cases, see Parr v. Smith  2 All E.R. 1031, CA.
Designation in the old JCT form of the contractor’s on-site representative.
The formula rules issued by the Joint Contracts Tribunal for use with clause 40 of the JCT contract, which is one of the alternative fluctuation clauses.
Fourth Class contract
An arrangement (often in the form of a letter of intent) where the parties are bound immediately and exclusively by the terms which they have agreed upon, whilst expecting to make a further contract in substitution for the first contract containing, by consent, additional terms; see Baulkham Hills Private Hospital Pty Ltd v G R. Securities Pty Ltd (1986) 40 NSWLR 622.
CPR term for Mareva Injunction; see CPR 25.1(1)(f).
“Frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.Non haec in foedera veni. It was not this that I promised to do” (Lord Radcliffe in Davis Contractors Ltd v. Fareham Urban District Council  A.C. 696 at 729). Frustration of building contracts is very rare; see, for example, Wates Ltd v. Greater London Council (1983) 25 B.L.R. 1.
Démodé synonym for main contractor.
Guaranteed Maximum Price. A pricing structure whereby a contractor is paid according to the cost of the work, but subject to a maximum.
The form of sub-contract for use where the sub-contractor is nominated under the 1963 edition of the JCT form issued under the sanction of and approved by the National Federation of Building Trades Employers and the Federation of Association of Specialists and Sub-contractors and approved by the Committee of Associations of Specialist Engineering Contractors. Now supplanted by NSC/4 or NSC/4(a).
A site on which there has been no previous building. cf. Brownfield site.
Halsey Test, orHalseyGuidelines
The test/guidelines set out in Halsey v Milton Keynes as to when a successful party should be deprived of a costs order for refusing to attempt ADR.
Hancock v. Brazier terms
The three terms usually implied in a contract for the sale of a house to be erected.
(i) High Court Judge,
(ii) A TCC case classified as appropriate for management and trial by a High Court judge; see paragraph 3.7 of the TCC guide
Synonym for main contractor
Housing Grants Construction and Regeneration Act 1996 – the legislation responsible for introducing adjudication into England and Wales
Canadian expression for retention.
Method of calculating a contractors’ loss of gross profit following prolongation.
Heating, ventilation and air conditioning work.
The International Chamber of Commerce. The “Court” of the ICC is the body which administers arbitrations under, inter alia, FIDIC contracts.
The Institution of Civil Engineers.
The Intermediate Form of Contract published by the JCT. It bridges the gap between JCT 80 and the Minor Works Agreement.
The party who provides an indemnity.
The party that obtains the benefit of an indemnity clause.
Integrated Project Team. A management vehicle introduced by prime contracting, whereby the contract is managed by a team consisting of representatives of both employer and prime contractor.
Invitation to negotiate.
Invitation to tender.
The Joint Contracts Tribunal.
An abbreviation for the 1963 ed. of the JCT Standard Form of Contract.
An abbreviation for the 1980 ed. of the JCT Standard Form of Contract.
The JCT’s form of design-and-build contract.
The JCT’s form of management contract.
A carpenter, usually responsible for finer work.
Liquidated and ascertained damages.
In theory, a subcontractor who enters into subcontracts for the provision of labour but not materials. In practice, a workman taxed under Schedule D.
A defect that is hidden. cf. patent defect.
Barrister, solicitor, solicitor’s employee or other authorised litigator; see CPR 2.3(1).
Letter of intent
A letter, usually written by or on behalf of an employer to a contractor, evincing an intention to enter into a contract with the contractor at some time in the future. The usual features of a letter of intent are that it makes clear that the parties are not at this stage entering into contractual relations, and that the employer will pay for any work carried out by the contractor in reliance upon the letter.
List of rates
Usually, the pre-agreed rates in a re-measurement contract.
The pre-agreed consideration in a lump-sum contract.
A contract to execute work for a pre-agreed lump sum.
M & E
Mechanical and electrical work, such as plumbing, ventilation, electrical and lift installations.
Synonym for defects liability period.
This expression is now generally used to mean the procurement system whereby the main contractor, paid on a cost plus basis, will subcontract the whole of the works.
(i) A party which does not undertake any part of the works itself, but which contracts with the employer to act as an organiser of other contractors.(ii) A contractor who undertakes works, usually on a cost plus basis, with the intention of subcontracting the whole of the works.
Now called freezing injunction. An order freezing a defendant’s assets.
Usually means the measurement of the amount of building work done.
Measurement and value contract
Synonym for re-measurement contract.
A lien, commonly available in North America, whereby contractors, architects, etc. are entitled to liens on property that they improve if they are not paid.
Defined by the Academy of Experts as “A dispute resolution process whereby a neutral first attempts to mediate the dispute but, if mediation is unsuccessful in whole or in part, the remainder of the dispute is arbitrated upon by the same or a different person”.3
An ADR technique whereby an independent third party, usually called a neutral, facilitates a settlement between the parties by techniques including caucus sessions, in which the neutral will talk to the parties independently of each other.
Mechanical, electrical and plumbing work.
A statement by the contractor as to the method he proposes to adopt for the carrying out of the works. The use of method statements is more common in civil engineering contracts than building contracts. For examples of the relevance of method statements see Yorkshire Water Authority v. Sir Alfred McAlpine & Son (Northern) Ltd (1985) 32 B.L.R. 114 and Holland Dredging (UK) Ltd v. Dredging and Construction Co Ltd (1987) 37 B.L.R. 1.
An ADR technique whereby the parties make a short presentation of their respective cases, often before a panel consisting of a senior executive from each party plus an independent neutral chairman.
Minor works agreement
The agreement for minor building works issued by the JCT.
Maximum Price Target Cost. A pricing structure particularly used in Prime Contracts whereby a target cost is established, and overspends against that are shared, subject to a maximum price arrangement.
Under the CPR, the track for larger cases (normally £15,000 or more); see CPR 26.6.
The process whereby two companies, often in common ownership, swop names. The technique is sometimes used to give a misleading impression to the public that a worthless off-the-shelf company is a company with an established reputation.
Defined in the Interpretation Act 1987 (NSW) as “January, February, March, April, May, June, July, August, September, October, November or December”
A sub-contractor that is chosen by or on behalf of the employer, but who is treated as a domestic and not a nominated sub-contractor for the purposes of his contract with the main contractor. The procedure appears in some JCT contracts.
Nemo dat quod non habet
Legal principle that a transferee of property cannot acquire ownership of it unless the transferor himself owned it.
Defined by the Academy of Experts as an “independent third party who acts as mediator, conciliator or chairman in various ADR procedures”.4
Generally, a sub-contractor with whom a main contractor enters into contract pursuant to the instructions of the architect. The expression has a precise meaning in JCT contracts (at clause 35.1 of the 1980 ed.; a different definition appeared at clause 27(a) of the 1963 ed.).
(i) In the legal sense, an agreement whereby it is agreed that an incoming party takes the place of an outgoing party in a contractual arrangement for retrospective as well as prospective purposes.
(ii) The arrangement whereby the contractor takes over the employment of a professional in a design-and-build context.
The standard form of nominated subcontract issued by the JCT, taking the place of the Green Form.
Optical character recognition. A technique whereby typed or printed documents may be “read” by electronic equipment.
For practical purposes, one of the judges who used to hear building contract cases in the UK High Court.
Official referee’s schedule
More commonly known as a Scott Schedule. A form of pleading commonly used in the official referee’s court, where the contentions of the parties appear in tabular form.
Items of original contract work required not to be carried out by the employer or the architect on the employer’s behalf.
A construction (now discredited) of section 13(4)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW); see our annotation of the SA Act and Estate Property Holdings Pty. Limited v. Barclay Mowlem Construction Limited  NSWCA 393
Synonym for workman.
The Official Referees Bar Association (now TECBAR).
The Official Referees Solicitors Association (now TeCSA).
Preliminaries and General
Package deal contract
Synonym for design and build contract.
Part 8 claim
New name for Originating summons.
Part 20 claim
CPR term for a claim other than a claim by a claimant against a defendant; see CPR 20.2(1), i.e. a counterclaim or what was formerly known as a Third Party Claim.
Part 36 offer
An offer to settle made under Part 36 of the CPR.
Particulars of claim
CPR term for Statement of Claim.
Defined by HM Treasury’s Procurement Guidance Document Number 1 as, “A management approach used by two or more organisations to achieve specific business objectives by maximising the effectiveness of each participant’s resources. It is based on mutual objectives, an agreed method of problem resolution and an active search for continuous measurable improvements.”
A defect that is not hidden. cf. latent defect.
Pay now, argue later
A rubric used to describe the general nature of the adjudication process. See post.
A clause in a sub-contract which provides that the main contractor need not pay the sub-contractor until the main contractor himself receives payment from the employer in respect of those works.
This expression has various meanings. In the building industry it does not usually mean the kind of “on demand” banker’s bond which stands on a similar footing to a letter of credit (Edward Owen Engineering Ltd v. Barclays Bank International Ltd  1 W.L.R. 764). It usually means a guarantee in the ordinary sense of the word by a surety, often a bank or insurance company, that the contractor will perform his obligations under the contract.
A specification which defines the physical characteristics required of building works, e.g. the air temperature to be attained by a central heating system given an ambient temperature or the rate of air change to be attained by a ventilation system.
Period of final measurement
The period referred to in clause 126.96.36.199 of the JCT contract within which the quantity surveyor must prepare and deliver a statement of all the final valuations of extra work, etc.
JCT jargon for foreman-in-charge.
Private Finance Initiative. A means of procuring public assets using private capital.
The Private Finance Panel.
(i) Equipment such as cranes, earthmoving equipment, generators and other equipment used in the execution of building works.(ii) Machinery installed in a finished building.
Public/private partnership. A means of procuring public assets using private capital.
Generally means the stage at which the works are sufficiently complete to be fit to hand over, albeit there may be minor defects or omissions.
Work and materials necessary for the execution of building works, but not actually forming part of the completed works themselves. Examples are site huts, scaffolding, site clearance, plant and temporary lighting.
In broad terms, the cost to a contractor of executing building work, usually excluding overhead costs that are not exclusively referable to that work. Sometimes it is more exactly defined, e.g. in the JCT form of fixed-fee contract.
Prime cost contract
A contract where the price is fixed after the work is done by reference to the prime cost of the work. Synonym for cost-plus contract.
Prime cost sum
In a bill of quantities, the price placed against an item requiring the contractor to enter into a nominated subcontract. The expression is to be distinguished from other uses of the expression prime cost; the tenuous connection is that under the usual nomination system the main contractor is, in respect of that work, paid whatever he (the main contractor) must pay the nominated subcontractor.
(i) In the context of an agency, the party on whose behalf the agent acts.
(ii) In the context of a guarantee, the party whose obligations are being guaranteed.
(iii) The paymaster under a construction contract
An intended sequence of construction operations. In the USA this is usually known as a schedule. In Australia it is sometimes spelled program.
(i) Usually delay in the completion of the works that is the responsibility of the employer.
(ii) Synonym for prolongation costs.
Loss and expense caused to a contractor by reason of prolongation.
(i) An item in a bill of quantities designed to approximately estimate the cost of work yet to be particularised.
(ii) The expression is sometimes loosely used to describe any approximate estimate of the cost of building work.
Pre Trial Review.
A clause whereby disputes as to the conduct of a defence are referred to an independent QC. QC clauses are common in insurance contracts and other arrangements whereby one party is indemnifying another.
A surveyor whose principal function is to measure and value building work.
Queen of Hearts clause
A notice provision or time bar clause included in a contract by the paymaster with the intention that the clause is practically impossible to comply with.
A puisne judge in England and Wales, traditionally knighted in the next honours list after appointment. Most judges of the High Court other than judges of the TCC are Red Judges.
In planning or retrospective delay analysis, a statement of the way in which the work must be carried out, e.g. that a wall cannot be painted until a certain amount of time after it has been plastered.
In the JCT form of contract, an event which entitles the contractor to an extension of time in which to complete the works.
Hybrid between lump-sum contract and cost contract.
United States expression for retention.
The money deducted and retained by the employer from sums that would otherwise be due to the contractor, usually 5 per cent. The retention fund is usually released as to half upon practical completion and as to the other half upon the architect’s certificate of completion of making good defects.
Retrospective delay analysis
At the process of analysing responsibility and lay on a project after that delay has occurred.
Royal Institute of British Architects (not pronounced “reeber”, but R-I-B-A).
The forerunner of the JCT contract, now sometimes used as a synonym for the JCT contract.
Room data sheets
Sheets used in employers’ requirements to specify the requirements in terms of dimensions, numbers of electrical sockets etc on a room-by-room basis.
(i) Senior circuit judge(ii) A TCC case classified as appropriate for management and trial by a senior circuit judge; see paragraph 3.7 of the TCC guide
Society of Construction Law
Society of Construction Law Delay & Disruption Protocol; see www.eotprotocol.com
Familiar synonym for Official Referee’s Schedule.
Scott v. Avery Clause
(i) Traditionally, a clause denying the right for parties to litigate until the matter in dispute has been considered by arbitrators
.(ii) More loosely, a clause denying the parties a right to litigate or arbitrate until completion of an adjudication or ADR process.
CPR term for Anton Piller Order; see CPR 25.1(1)(h).
Seat of the arbitration
Defined by Part I of the Arbitration Act 1996 as “the Judicial seat of the arbitration designated:
(a) by the parties to the arbitration Agreement, or
(b) by any arbitral or other institution or person vested by the parties with powers in that regard, or
(c) by the arbitral tribunal if so authorised by the parties,
or determined in the absence of any such designation, having regard to the parties’ agreement and all the relevant circumstances”.
Section 4 summons
Summons issued by a defendant to court proceedings under the Arbitration Act 1950, s. 4 seeking a stay of those proceedings so that the dispute may be referred to arbitration. Now see the Arbitration Act 1996.
This expression is usually used to describe the installations that provide central heating, air conditioning, hot water, drainage, electric power, lifts, etc.
In the United States, a person appointed by the court to assist the parties to achieve a settlement.
Small works agreement
Expression sometimes used to describe the agreement for minor building works issued by the JCT.
A list of minor defects and omissions usually prepared when works are nearing completion.
Society of Contruction Law of Australia
This expression is generally used to describe a subcontractor (usually nominated) who is responsible for some specialised part of the works, such as services.
(i) Generally, any description of building works.(ii) The expression is sometimes particularly used to describe a document containing special requirements as to the works, e.g. as to which British Standards the materials are to conform.
(iii) The expression is sometimes used to describe an informal or short document in lieu of a bill of quantities.
A guide, edited by Messrs Davis, Langdon and Everest, Quantity Surveyors, to the cost of building works.
Standby letter of credit
Synonym used in some Commonwealth jurisdictions to describe an “on demand” performance bond.
An engineer whose principal responsibility is the load bearing structure of building works.
Contractor’s jargon for labour-only subcontractor.
Synonym for sub-contract as a verb.
The right of an insurer which arises in some circumstances upon payment of a claim to take over the rights of the insured and sue the party at fault. See Petrofina (UK) Ltd v. Magnaload Ltd (1983) 25 B.L.R. 37 for an example of an insurer under a contractors’ all risks policy being refused the right of subrogation.
That degree of completion which is ordinarily necessary for the contractor to recover anything under a lump-sum contract. It is usually a lesser degree of completion than practical completion or entire completion.
Creature of the JCT Local Authorities contracts. A person other than an architect who fulfils the function of certifier.
Synonym for guarantor. The law concerning guarantees is sometimes known as the law of principal and surety.
There are various forms of complex arrangements whereby the method of calculation of the contractor’s final entitlement depends upon whether the final cost of the works exceeds a pre-agreed target sum. The scheme is sometimes used where the employer and the contractor wish to share between them any saving in the anticipated cost of the works.
A procurement approach whereby the outturn specification of a structure is established, together with the acceptable cost. The designers and constructors are then required to design and build the work so as to achieve those requirements at that cost.
Abbreviation for the Technology and Construction Court (also referred to as the Technology & Construction Court or Courts). The term “Official Referees” was formally dropped on October 9, 1998 and the court previously referred to by this name has been renamed as above. Judges previously referred to as “Official Referees” are now known as judges of the Technology and Construction Court and referred to as “My Lord” or “My Lady” as appropriate.
The Technology and Construction Solicitors’ Association. See http://www.tecsa.org.uk/
The Technology and Construction Bar Association. http://www.tecbar.org/
Something less than a breach of contract; see the speech of Lord Diplock in P and M Kaye Ltd v. Hosier and Dickinson Ltd  1 W.L.R. 146 at 165.
A formal written offer by a contractor to do work, usually (but not always) for a lump sum.
Through Life Cost, including not only the capital cost of construction in the first place, but also the cost of maintaining a structure.
Take over certificate, certifying take over of completed work by the owner.
Contracting where the contractor is not responsible for design, and executes the work for a lump sum, which is usually subject to adjustment. Contrast design and build contracting and management contracting.
An indemnity which bites regardless of whether the indemnitor is to blame for the subject matter of the indemnity. Contrast comparative indemnity.
Discount obtained by main contractors from subcontractors, referable not to the promptness of payment (as in the case of a cash discount) but to the value of the business done. Usually sought on an annual basis, rather than on a contract basis.
An expression sometimes used to describe a design and build contract where the contractor not only designs and builds the building but also designs and installs any plant necessary. The idea is that all the employer has to do is to turn the key to the front door and start using the building. The term, however, is not a term of art (Cable (1956) Ltd v. Hutcherson Ltd (1969) 43 A.L.J.R. 321, High Court of Australia).
The disruptive effect upon the contractor of architect’s instructions or interference via the employer. Often one head of a loss and expense claim by the contractor.
An order that parties consider ADR, and if they consider the case unsuitable, that they give reasons why.
This usually means the valuation of building work carried out by the quantity surveyor upon which the architect makes his interim certification of payment to the contractor, e.g. under clause 30.1.2 of the JCT contract.
This expression usually means a variation required by the employer or the architect on the employer’s behalf. It rarely includes any unilateral change of plan by the contractor.
West Coast model
This expression has a precise definition under clauses 38.6.3 and 39.7.3 of the JCT contract and clauses 35.6.3 and 36.7.3 of NSC/4.
An abbreviation for building works, meaning both the work and the materials required for the building.
In the JCT management contract system, one of the trade contractors who enters into contract with the management contractor, and who actually does the work.
Witness statement of fact.