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ARTICLE · 04 FEBRUARY 2019

Legal Developments In Construction Law - January 2019

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Clauses in a subcontract for trench excavation for an underground district heat network contained a broad allocation of risk to the subcontractor.

European UnionReal Estate and Construction
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1. Work in the trenches – scope of work defeats broad risk allocation

Clauses in a subcontract for trench excavation for an underground district heat network contained a broad allocation of risk to the subcontractor. The subcontract included 'all civil works' but the subcontractor excluded a number of matters, for instance the removal of soft spots and breaking out of obstructions, including rock. So what, precisely, was the scope of the subcontract works? If removal of the soft spots and other excluded items were not included in the scope, instructions to carry out these items would be variations.

The court said the obvious starting point, and key issue, was to ascertain, as a matter of construction, what the subcontractor had contracted to do. The judge accepted that the scope of works document broadly defined the subcontract works as all civil works associated with the network, including break out, excavations etc., in accordance with the drawings, but the

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