BNP Paribas Depository Services Limited & Anor v Briggs & Forrester Engineering Services Limited

In a design and build contract, broad obligations concerning design, site conditions, statutory compliance and completion may allocate responsibility for unforeseen works even where those works are not expressly itemised. Contractual reliance on employer-provided surveys is excluded where the contract contains clear no-reliance and site-risk provisions. A contractor cannot treat a limited quotation or survey as a contractual carve-out from wider obligations unless the contract or admissible factual matrix clearly establishes that allocation.

A contractual right to suspend or terminate for employer prevention requires proof that the specified event actually caused suspension of the whole or substantially the whole of the uncompleted works for the prescribed period. A contractor cannot rely on employer prevention where the relevant suspension resulted from its own failure to perform contractual works.

The claimants, trustees of City Tower, engaged the defendant under a JCT design and build contract for stair pressurisation works. The works included asbestos removal and associated builder’s work. Further asbestos was discovered, and structural defects were found in floors within one riser.

The defendant contended that its asbestos obligations were limited to works identified in an asbestos survey and a specialist subcontractor’s quotation. It also contended that structural strengthening required an employer’s instruction. After the claimants declined to provide further surveys or instructions, the defendant suspended the works and terminated under clauses 8.9.2 and 8.9.3. The claimants treated that termination as repudiatory and sought declarations concerning the parties’ contractual rights.

The central issues were the allocation of responsibility for further asbestos surveys, asbestos removal and structural strengthening, and whether the defendant was entitled to suspend and terminate.

1. Contract interpretation. The contract placed responsibility for the design and completion of the whole stair pressurisation installation on B&F. The amended conditions, including clause 2.40, required B&F to inspect site conditions, excluded reliance on employer-provided information and allocated the consequences of subsequently discovered conditions to B&F. The amended conditions prevailed over inconsistent Employer’s Requirements.
2. The Employer’s Requirements were deliberately wide and non-exhaustive. They included all asbestos removal necessary for the works, together with incidental, temporary and permanent builder’s work. The Eton refurbishment asbestos survey was not comprehensive and the Woods quotation did not establish an agreed limitation or contractual carve-out. The inclusion of a provisional sum for certain asbestos risks supported, rather than displaced, the conclusion that other necessary asbestos works remained B&F’s responsibility.
3. The Control of Asbestos Regulations 2012 and associated guidance did not prevent the parties from allocating contractual responsibility for further surveys and asbestos works to B&F. Statutory duties did not determine the contractual allocation between BNP and B&F.
4. Structural strengthening was also B&F’s responsibility. The contract required all incidental works necessary for completion, protection and alteration of the risers, and supports necessary to preserve the stability of existing structures.
5. Under clause 8.9.2, impediment, prevention and default are distinct concepts. Prevention requires an act or omission which causes the relevant suspension. B&F’s failure to undertake required surveys and structural works meant that the suspension resulted from B&F’s own default, not BNP’s prevention or default. In any event, outstanding design work had not achieved the approval status necessary for the main installation works to proceed, so substantially the whole of the uncompleted works was not suspended by BNP.
6. B&F was therefore not entitled to serve either notice. Its purported termination amounted to a repudiatory breach, which BNP validly accepted. BNP was entitled to the declarations sought. Outstanding matters were reserved for determination if not agreed.