Comment There are three points to emphasise for contractors. • First, do not overreact. Whether or not there is a concurrent duty in tort is unlikely to affect extent of the work the contractor has to do. It affects the time limit within which the client is able to bring a claim. It increases it from six years from the breach of contract, to six years from when the client did or should have become aware of the damage, subject to the ten-year long-stop limitation period for claims relating to building work. • Second, if they do not intend to adopt duties in (or accept liability for) negligence, contractors should spell this out in clear terms in the contract. This might be done, for example, in an exclusion clause. However it is done, it is vitally important that the language is clear. • Third, if contractors do not wish to accept the risk that remedial work (or damages to cover the costs of such work) will be more costly, due to changes in the Building Code, that, too should be addressed in the contract. One way of doing so might be to adapt a clause providing that relevant changes in the Building Code entitle the contractor to a variation, so that it excludes liability to pay for rectification costs arising from such changes.
ABOUT THE AUTHORS
Michael Taylor Senior Associate
Michelle Mau
Michael practices in commercial litigation and advocacy with a particular focus on construction, information communications and technology, and insurance law. He practiced at the London Commercial Bar for over 15 years before joining Russell McVeagh. He ranked as Leading Junior Counsel in The Legal 500 UK and Chambers & Partners UK.
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