Having recently won a contractual dispute for a Contractor in the Royal Courts of Justice as a Direct Public Access Barrister that was hard fought over many years, I am reminded of the importance of having a robust written contract in place for construction projects before the start of the work. It is well known by Contractors that in a lump sum contract if work is included in the original contract the Contractor cannot claim extra payment for it. They have to show that it is extra work that was not agreed before the work was commenced but was later agreed as a variation.
In the case in which I represented the Contractor in court, the use of an appropriate standard form of construction contract or bespoke contract with standard variation clauses would have avoided the need for a trial, cross examination of witnesses and the examination of evidence in correspondence to establish that oral variations had been agreed.
Contractors would save themselves a lot of pain, time and money if they adopted the good sense of getting a written contract in place before starting the work. This would avoid disputes over whether it was agreed before the commencement of the work that the Contractor should be paid for variations.
It is a false economy for Contractors to save the cost of getting legal advice and of getting a contract drawn up before commencement of the work, to find they are faced years later with the task and costs of having to rely upon a Barrister to try to persuade the court to find in their favour after years of litigation.
If their purchase order or agreement does not contain a variation clause and their is a dispute over whether oral variations were agreed, the Contractor will be faced with the unenviable burden of having to prove in court they should be paid for the extra work.
