HT-2023-000006 - [2024] EWHC 1510 (TCC)

Clause 4.1: The Sub-Contractor shall supply all labour, supervision, administration and plant and equipment (including any storage on site required) necessary for the Sub-Contractor to carry out the Sub-Contract Works in accordance with the Sub-Contract.

Clause 4.7: The Sub-Contractor shall advise J & B Hopkins when it requires the delivery (whether to Site or the Sub-Contractor’s premises) of Free Issue Materials. The Sub-Contractor shall retain all delivery/advice/collection notes for all such items provided by J & B Hopkins and shall return such documents to J & B Hopkins as directed by J & B Hopkins. Free Issue Materials not incorporated into the Sub-Contract Works and/or used in the carrying out of the Sub-Contract Works shall be returned to J & B Hopkins immediately upon Practical Completion.

Clause 4.8: Free Issue Material shall become the responsibility of the Sub-Contractor upon delivery to it either at the Site or the Sub-Contractor’s premises. The Sub-Contractor shall assume all risks and insurance obligations in Free Issue Materials upon such delivery to it until Practical Completion. Title in Free Issue Materials shall be retained at all times by J & B Hopkins.

Clause 4.9: The Sub-Contractor shall satisfy itself in good and sufficient time before commencing any part of the Sub-Contract Works as to the position, dimensions and suitability of any previous work, which might affect the Sub-Contract Works and shall promptly advise J & B Hopkins in writing if any such previous work is out of position, wrongly dimensioned or in any other way unsuitable. The Sub-Contractor shall not be entitled to any adjustment of the Sub-Contract Sum or to an extension of time in respect of any discrepancy in position or dimension or other unsuitability of any such previous work unless the Sub-Contractor shall have advised J & B Hopkins of the same in accordance with this clause.

Clause 4.10: The Sub-Contractor shall be liable for the cost of replacement of any items of plant and equipment, Free Issue Material and materials and goods (whether Free Issue Materials and/or materials and goods are incorporated into the Sub-Contract Works or not) stolen or damaged whilst on site. All costs caused to J & B Hopkins as a result of such theft or damage shall be recovered as a debt due from the Sub-Contractor under this Sub-Contract.

Clause 7.1: The Sub-Contractor shall carry out and complete the Sub-Contract Works in conformity with the requirements of these conditions plus the Agreement and in such a manner as to avoid hindrance to the progress of others.

Clause 7.2: The Sub-Contractor shall, as soon as works are commenced on Site, proceed regularly and diligently with the execution of the sub-Contract Works in accordance with the construction programme and in accordance with progress of the works.

Any loss or expense caused to J & B Hopkins by the Sub-Contractor’s failure to comply with this clause shall be recoverable as a debt due from the Sub-Contractor or by way of set-off from sums due to the Sub-Contractor whether under this Sub-Contract or otherwise.

Clause 7.4: If in the opinion of the Contractor, the Sub-Contract works are failing to progress in line with the Contract Programme requirements, then after due notice of 7 days being given, and if resultant actions are not undertaken, it shall be J & B Hopkins’s prerogative to supplement the onsite labour requirements for the Sub-Contractor recovering all resultant costs as a deduction from the Sub-Contractor account.

Clause 8.1: J & B Hopkins may instruct a variation to the Sub-Contractor’s access date to the Site as may be set out in the Agreement by giving notice in writing to the Sub-Contractor at any time up to 5 business days prior to such date. The Sub-Contractor shall not be entitled to an increase in the Sub-Contract Sum and/or loss and expense as a result of or in connection with such variation.

Clause 8.2: J & B Hopkins may, at any time prior to Principal Practical Completion, by notice in writing require the Sub-Contractor to carry out a variation to the Sub-Contract Works. Notwithstanding anything to the contrary elsewhere in this Sub-Contract, no variation to the Sub-Contract Works shall be made necessary by reason of negligence, omission or default of the Sub-Contractor, its servants, agents and suppliers and in such event the Sub-Contractor shall not be entitled to any increase in the Sub-Contract Sum or any extension of time to the Completion Date.

Clause 8.3: The Sub-Contractor shall implement a variation immediately upon receiving notice of the same and the Sub-Contractor shall provide a quotation for the variation to J & B Hopkins within five days from receipt of the notice. A failure by the Sub-Contractor to provide a quotation pursuant to this clause and/or if such quotation is not agreed the Sub-Contractor shall not be excused from implementing the variation and in such event the Sub-Contractor shall be paid a fair and reasonable price for the variation.

Clause 8.4: The Sub-Contractor’s quotation shall comprise the following:

The value of the adjustment to the Sub-Contract Sum for performing the additional work supported by all necessary calculations for reference, where relevant, to the quantified schedule of rates in support of the Sub-Contractor’s tender and including, where appropriate, allowance for any adjustment of preliminary items;

Any adjustment to the period specified in the Sub-Contract Order and/or the Agreement and/or an agreed programme for the completion of the Sub-Contract Works to the extent that such adjustment is not included in any other extension of time which has been granted to the Sub-Contractor, or included in any other quotation accepted by J & B Hopkins in accordance with this Clause 8.0;

The value of the adjustment to the Sub-Contract Sum for any delay and/or disruption likely to be caused to the regular progress and/or completion of the Sub-Contract Works by reason of the instruction to carry out the additional work;

The method of carrying out the additional work; and

Any other information required by J & B Hopkins.

Clause 8.5: Within 7 days of J & B Hopkins receipt of the Sub-Contractor’s quotation, J & B Hopkins shall by written notice to the Sub-Contractor state whether it accepts the Sub-Contractor’s quotation. The acceptance by J & B Hopkins of any quotation provided by the Sub-Contractor in accordance with Clause 8.0 shall be in full and final settlement of the matters and process contained in the Sub-Contractor’s quotation and the Sub-Contractor shall not be entitled to any further change to the Sub-Contract Sum and/or any further extension of time to the Completion Date other than as set out in the quotation accepted by J & B Hopkins.

Clause 8.6: If J & B Hopkins does not accept the Sub-Contractor’s quotation, J & B Hopkins shall by written notice to the Sub-Contractor either direct that the additional work shall be performed (which, after completion of the same by the Sub-Contractor, shall be measured and valued by J & B Hopkins by reference to the rates specified in Appendix 8 for the like or analogous work but if there are no such rates J & B Hopkins shall be entitled at its complete discretion to make up the Sub-Contractor’s tender and apply those assessed rates), or direct that the additional work shall not be performed.

Clause 8.8: If J & B Hopkins accepts the Sub-Contractor’s estimate submitted under clause 8.7, J & B Hopkins will issue a variation notice setting out the agreed increase or decrease in the Sub-Contract Sum and/or the agreed extension of time to be granted. Such variation shall be entirely conclusive as to the effect of such variation. If the estimate submitted under clause 8.7 is not agreed, J & B Hopkins may nevertheless issue the variation notice and the Sub-Contractor shall be paid such sum and granted such extension of time as shall be fair and reasonable in all the circumstances. If a variation notice is issued, the Sub-Contractor shall thereupon proceed to comply immediately with such notice.

Clause 8.9: Notwithstanding anything in this clause 8.0, J & B Hopkins shall not be obliged to make payment to the Sub-Contractor for carrying out any variation to the Sub-Contract Works unless J & B Hopkins has instructed the Sub-Contractor to carry out such variation in writing.

Clause 8.10: The Sub-Contractor shall submit full and proper substantiation and such information as is required by J & B Hopkins and to J & B Hopkins satisfaction, in support of any Purport] to either variation works or an additional entitlement. This requirement shall be a condition precedent to payment for the same. This information provided by the Sub-Contractor shall clearly identify the source and basis of any purport to either variation works or any additional entitlement.

A fully detailed breakdown of all calculations and rates including, but not limited to, time sheets and material invoices, shall be provided by the Sub-Contractor.

Clause 8.11: Variation means a written instructed addition, substitution, or omission of work issued by the Contractor only. No alteration or modification to the design, quality and quantity of the Sub-Contract Works arising purely from the development of detailed design by the Sub-Contractor or from the co-ordination of the design or of the Sub-Contract Works with the works of other trades to avoid any spatial conflict or obstructions to access shall be construed or regarded as Variations.

Clause 9.5: The Contractor may not later than five days after the due date in Appendix 6, give a notice (“Payment Notice”) to the Sub-Contractor specifying:

The amount the Contractor considers to be due to the Sub-Contractor showing the basis on which that sum has been calculated, less retention, or such other amount as specified in Appendix 6, less any money previously paid;

In relation to a Payment Notice, it is immaterial that the amount then considered to be due may be zero.

Clause 9.8: Rules governing retention deducted and retained by the Contractor are as follows:

Prior to the First Retention Release Date the Contractor will retain the percentage as stated in Appendix 6.

50% of the retention amount held by the Contractor shall be released on the First Retention Release Date.

The remainder of the retention amount held by the Contractor shall be released on the Second Retention Release Date.

Clause 10.3: The Sub-Contractor shall indemnify J & B Hopkins in full against all liability, loss or damage (including costs, expenses and legal expenses) to persons or property real or personal, arising out of the carrying out of the Sub-Contract Works except where and to the extent such liability, loss or expense is caused by an act or omission of J & B Hopkins.

Clause 10.4: The Sub-Contractor warrants that it will carry out and complete the Sub-Contract Works in such a way so as not to directly or indirectly cause J & B Hopkins to be in breach of any provision of the Principal Contract and/or any other Contract made by J & B Hopkins in connection with the Works or incur any other liability thereunder. The Sub-Contractor hereby acknowledges that any breach or default by it of the Sub-Contract may result in J & B Hopkins committing breaches and/or becoming liable in damages under the Principal Contract and/or any other Contract made by J & B Hopkins in connection with the Works and may occasion further loss and/or expense to J & B Hopkins in connection with the Works and J & B Hopkins and the Sub-Contractor hereby acknowledge that any such damages, loss and expense are hereby agreed to be within the contemplation of the parties as being probable results of any such breach and/or default.

Clause 11.1: J & B Hopkins shall have the right to suspend performance of the Sub-Contract Works by the Sub-Contractor for any period J & B Hopkins requires upon giving written notice to the Sub-Contractor who shall forthwith comply with such notice. J & B Hopkins may end suspension of the Sub-Contract Works by giving written notice to the Sub-Contractor and the Sub-Contractor shall forthwith resume performance of the Sub-Contract Works ….

Clause 11.2: The Sub-Contractor may suspend performance of its obligations under this Sub-Contract where a sum due to the Sub-Contractor is not paid pursuant to clause 9. Such right to suspend shall not be exercised until the Sub-Contractor has given 14 days’ notice in writing to J & B Hopkins of its intention to suspend performance and stating the ground or grounds.

Clause 12: If J & B Hopkins fails to make payment to the Sub-Contractor of any sum which is due to the Sub-Contractor under this Sub-Contract by the final date for payment of that sum, J & B Hopkins shall pay to the Sub-Contractor in addition to the amount not paid simple interest thereon for the period from the final date for payment to the date payment is made. The rate of interest shall be 2% over the Base Rate of the Bank of England current at the date of J & B Hopkins default. The Sub-Contractor acknowledges that such rate is a substantial remedy for late payment (as defined in the Late Payment of Commercial Debts (Interest) Act 1998).

Clause 13.1: If the Sub-Contractor fails to complete the sub-Contract Works by the Completion Date it shall pay or allow to J & B Hopkins as a debt from the Sub-Contractor or by way of set-off from sums due to the Sub-Contractor under this Sub-Contract a sum equivalent to any loss or damage suffered by and/or anticipated to be suffered by, J & B Hopkins and caused by such failure including, but not limited to, J & B overhead charges and supervision and liquidation damages payable by J & B Hopkins under the Principal Contract. J & B Hopkins is hereby authorised to deduct or set off any amount payable under this clause from any payment which may at ant time be due or have become due to the Sub-Contractor whether under the Sub-Contract or otherwise.

Clause 13.2: If the Sub-Contractor shall be delayed in the execution of the Sub-Contract Works by:

Force Majeure; or

The order of any variation to the Sub-Contract Works under clause 8; or

Any breach of the Sub-Contract or act of prevention by J & B Hopkins; or

Suspension of the Sub-Contract Works in accordance with clause 11

then the Sub-Contractor shall be entitled to such extension of time to the Completion Date as J & B Hopkins may determine acting reasonably provided always that any such extension of time shall not exceed any extensions of time to which J & B Hopkins is properly entitled under the Principal Contract.

Clause 13.3: It shall be a condition precedent to the Sub-Contractor being granted an extension of time pursuant to clause 13.2 that the Sub-Contractor shall notify J & B Hopkins in writing within 14 days of such event occurring that it is or may be prevented from completing the Sub-Contract Works by the Completion Date. Except for suspension of the Sub-Contract Works pursuant to clause 11.2, a failure to comply with this clause shall prevent the Sub-Contractor from being entitled to an extension of time to the Completion Date.

Clause 13.4: The Sub-Contractor shall constantly use its best endeavours to prevent or minimise any delay in the progress of the whole or any part of the Sub-Contract Works.

Clause 15.1: If the Sub-Contractor:

Fails to proceed regularly and diligently with the Sub-Contract Works after being required in writing so to do; or

Without reasonable cause suspends the carrying out of the Sub-Contract Works; or

Refuses or persistently neglects after notice in writing from J & B Hopkins to remove defective work or improper materials; or

Becomes insolvent as set out in clause 15.2; or

Fails to comply with any applicable legislation; or

Is in breach of this Sub-Contract

then, without prejudice to any other rights and remedies it may have J & B Hopkins may except in the case of sub-clause (4), by written notice (the “Notice”) to the Sub-Contractor require the Sub-Contractor to remedy such failing and/or breach within 7 days from the date of the Notice. In the case of sub-clause (4), or if the Sub-Contractor fails to remedy its failing and/or breach within 7 days from the date of the Notice, J & B Hopkins may forthwith determine the Sub-Contractor’s employment under the Sub-Contract and may elect to employ a third party to complete the Sub-Contract Works or complete the Sub-Contract Works itself.

Clause 20.3: The decision of the adjudicator shall be binding until the dispute is finally determined by legal proceedings or [by] agreement.

Clause 20.4(5): The Adjudicator’s decision shall be binding until the dispute is finally determined by the High Court or by agreement between the Parties.

Clause 22.1: All notices under or in respect of this Agreement shall be deemed to be duly given or made when sent by recorded delivery to the address set out in the Agreement. All other communication made by e-mail or facsimile as set out in the Agreement shall be deemed given when sent.

Clause 23.1: No waiver by J & B Hopkins of any breach of the Sub-Contract by the Sub-Contractor shall be a waiver of any subsequent breach of the same or of any other provision of the Sub-Contract. No failure by J & B Hopkins to exercise any right or remedy arising under the Sub-Contract or at law shall be a waiver of its right to exercise such rights arising subsequently.

Appendix 2

Scope of Sub-Contract Works.

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Defined Scope of Works

The Sub-contract package of works comprises of the supply of labour, supervision and management required to install the free issue plumbing works further identified below. For the avoidance of doubt all installation materials are to be free issued by J & B Hopkins.

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