Tolent Clauses go and Other Construction Act Avoidance Devices at Risk

Last week the Technology and Construction Court declared Tolent clauses to be non-compliant with the Construction Act. The clauses are so-called after the case ten years ago that said they were in fact Act-compliant.

In that case there was a contractual provision that required the referring party in an adjudication to pay both parties' costs and the adjudicator's fees, whether it won or lost the adjudication. In last week's case the Tolent clause only applied to the contractor if it referred a dispute to adjudication. It did not apply to the employer if it started an adjudication.

While the judge was concerned with a more severe kind of Tolent clause it seems clear from his reasoning that all Tolent clauses are non-compliant with the Act. (There is an even more severe kind of Tolent clause that requires one party to pay the other's costs and the adjudicator's fees, whether or not it starts the adjudication and whatever the outcome.)