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ARTICLE · 17 OCTOBER 2013

Implied Terms And Variations In Construction Contracts – Issues Arising From Recent Case Law

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Implied terms in construction contracts (or lack of) and instructions to vary works can cause problems for developers carrying out construction works.

United KingdomReal Estate and Construction
Becky Johnson
Becky Johnson

Implied terms in construction contracts (or lack of) and instructions to vary works can cause problems for developers carrying out construction works. These issues were considered in two recent cases: Aspect Contracts (Asbestos) Limited v Higgins Construction Plc and MT Højgaard A/S v E.On Climate and Renewables UK Robin Rigg East Ltd.1

Implied terms

The Aspect v Higgins case confirmed the difficulty that parties will face in seeking to persuade the courts to imply terms into construction contracts (and indeed contracts generally).  Higgins had engaged Aspect to carry out a survey of an estate in Hounslow. Higgins started an adjudication some four years after asbestos was found, alleging that Aspect had failed to pick up the presence of asbestos. The adjudicator found in Higgins' favour and Aspect paid £658,017.

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