Insurance requirements in construction contracts

Risks may result in direct loss or damage including various legal liabilities from design stage through to handover and various consequential loss exposures and consequential loss.

Factsheet last updated by author August 2016.

Summary    

Parties to the contract are numerous, for example employer, main contractor, subcontractors and professionals. Their respective responsibilities may arise in contract or in tort, but the building contract itself mostly governs the responsibility.

The main building contract in the UK is the Joint Contracts Tribunal (JCT) form. Other contracts are the Infrastructure Conditions of Contract (ACE and CECA), FIDIC forms (for consultant engineers and overseas work), GC/Works/1 (the main UK government form), the NEC Engineering and Construction Contract and the Institution of Chemical Engineers form. Plant-hirers use the standard Contractors' Plant Association (CPA) Model Conditions.

The current JCT contracts in use are the 2011 versions, the main ones being the Standard Building Contract and the Design and Build Contract.

Apart from the main liability and contract works insurances, the following are important additional covers:

• Professional indemnity - for all the professional advisers.
• Design and build professional indemnity for contractors and subcontractors.
• Insurance to cover the employer for possible nuisance-based claims from neighbours.
• Liquidated damages and the employer's loss of liquidated damages remains an issue, but there is no longer a clause 22D requirement for insurance. 
• Performance and other bonds.
• Latent defects.
• Loss of revenue and increased cost of working.
• Environmental impairment indemnity.
• Terrorism damage.

Finally, some contracts are large and specialist or may be the subject of a joint venture, and for these a single project insurance may be more appropriate.

The contract

Most commercial building work is carried out under a standard form of contract, with or without amendments. There are several forms in use to suit different circumstances; the most important forms are detailed below.

Responsible body	Form of contract	Latest edition
Joint Contracts Tribunal (JCT)	Standard Form of Building Contract	2011
	Design and Build Contract	2011
	Intermediate Form of Contract	2011
	Major Contracts Form	2011
Contractors' Plant Association (CPA)	Model Conditions	2001
Institution of Chemical Engineers	For process plants	2002
Association for Consultancy and Engineering (ACE) and the Civil Engineering and Contractors Association (CECA)	Infrastructure Conditions of Contract	2011
International Federation of Consulting Engineers (FIDIC)	For overseas contracts and construction plant and design and consulting engineering	1999
NEC Contracts	Engineering and Construction Contract (NEC4)	2013
Office of Government Commerce	GC/Works/I (UK government conditions of contract)	1998

Most building work is currently carried out under the JCT 2005 and 2011 contract, either the standard form or the design-and-build version (currently, nearly 75% of building contracts are now procured on a design-and-build basis).The 2005 Edition of JCT was withdrawn on 1 July 2012 and was replaced by JCT 2016. References to the JCT contract below relate to both the standard and the design-and-build versions unless indicated otherwise.

All of these contracts set out the rights and obligations of the parties with regard to risk and insurance. Due to the tendency to amend standard contracts, each individual contract should be investigated carefully when advising on insurance and risk management.

Parties to the contract

These can be numerous and may include any of the following:

• Party commissioning the work, known as either the principal or employer.
• Funders, usually a bank who lend the money to the principal to enable the work to proceed.
• Architects, consulting engineers, design consultants, surveyors and other professional advisers. They are usually appointed by the principal under direct contracts. Such contracts are sometimes novated (see below), and a contractor takes over all responsibilities under a design- and-build contract.
• Managing contractor, who is responsible for completing the works on time with the appropriate quality and within budget. An alternative is a contracts manager or project manager whose role is to supervise and control the project on behalf of the principal. The managing contractor achieves its mandate by appointing others to do the work, for example a main contractor and subcontractors. When a construction manager is appointed the contractors whom he in turn appoints are known as "trade contractors".
• Main contractor, whose role is to complete the works within budget and on time and to the quality required, using its own resources and those of the subcontractors it employs.
• Subcontractors, who are either employed directly by the principal (usually via the architect or project manager) and known as nominated subcontractors, or are seconded to the main contractor (domestic subcontractors). They are specialists in their respective disciplines and on completion of their part of the works will hand over to the main contractor. Under the JCT 2016 contracts, sub-contractors are not defined, but would be classed as employer's persons or contractor's persons as defined in Section 1 of the contract.
• The latest Construction. Design and Management Regulations 2015 now require the role of Principal Designer. The original role of CDM Co-ordinator no longer applies. The new regulations place more onus on the client, provide more assistance for SME's and the new regulations now apply to domestic clients. The roles of Principal Designer and Principal Contractor are more integrated and they are expected to provide assistance to the client in carrying out the latter' s duties. 
• Suppliers. These may be simply supplying materials or may be involved in "supply and fix". Their status and responsibilities will depend on the conditions of their contract. Suppliers of plant such as cranes would operate under standard plant hire conditions.

Other parties may become beneficiaries of the contract by virtue of collateral warranties, for example tenants, purchasers, funders. JCT 201 contains, as integrated options, provisions for the contractor's designed portion; for purchasers', tenants' and funders' rights against the contractor, either in the form of third-party rights or collateral warranties; and for collateral warranties from relevant subcontractors (including warranties in favour of the employer). If warranties are required they must be raised at the time the contract is drawn up. The contract particulars must show the type of warranty and the name of the beneficiary. This cannot be arranged later, so failure to do it at this stage would deprive the relevant parties of any remedy for defects.

Legal issues

As with all business transactions, claims in construction may arise in contract or in tort. Contracts are a permanent feature of the industry and control the allocation of risk and insurance responsibility. Nevertheless, many legal actions do arise in tort. Concurrent liability in tort and contract is now well established (Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp (1978)).

Legal status of the parties

The legal status of the parties is almost totally governed by the network of contracts involved. One principle which insurers wish to retain is their right of subrogation against actual wrongdoers, for example via a main contractor policyholder against a negligent subcontractor, or via a principal against a contractor. However, modern building contracts have developed along the lines of joint responsibility, which has diminished or extinguished insurers' subrogation rights.

The joint names insurance requirement in the JCT and other contracts has led to considerable case law and the effect of such clauses remains geared largely to the actual words used. Examples of cases in recent years illustrate the problem. These cases come about because insurance companies do not wish to give up their subrogation rights, particularly where they feel that another party has been negligent.

In Petrofina UK Ltd v Magnaload (1984) QB1227, it was held that where several parties are involved in a contract, each one may insure the entire contract works, as well as their own property. Subsequent cases supported this, including National Oilwell Ltd v Davy Offshore Ltd (1993) Lloyds Rep.585 and Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd and ICI Chemicals and Polymers Ltd (1998), although in both cases the contract itself clarified the extent of the immunity of the parties. In National Oilwell, for example, the joint protection related only to pre-delivery risks and in Deepak the immunity ceased as soon as the works were complete.

In National Trust v Haden Young Ltd (1993) the negligent sub-contractor was not able to rely on the fact that the National Trust insured the works for fire risks. The insurance did not extend to cover fires caused negligently by a sub-contractor. Case law appeared to have equated risk with insurance in the cases of Cooperative Retail Services Ltd v Taylor Young Partnership Ltd (2002) and GD Construction (St Albans) Ltd v Scottish and Newcastle plc (2003).

The rationale behind these decisions was that if a party to the contract had agreed to insure the works, they had also agreed to accept the risk. However, several further cases have shown that this rationale remains as fluid as ever.

One of the most recent cases illustrating this fluidity is Tyco Fire and Integrated Solutions Ltd v Rolls Royce Motor Cars Ltd (2008) EWCA Civ 286. Rolls Royce should have maintained a joint names insurance cover on their existing structure for specified perils. Following severe water damage due to the negligence of the contractor (Tyco), Tyco claimed that it was protected by this clause. In fact, although Rolls Royce had failed to maintain its cover, the decision went against Tyco as if the cover had been in force.

The Court of Appeal held that the damage to existing structures was not the type of damage covered by the clause.This seems to be one of a number of cases where damage to existing structures is not that which is envisaged to be within the joint names protection, particularly where there is a separate indemnity clause in the contract. In other words, joint insurance relates to claims on the works, not existing structures even where there is a requirement for the employer to take out joint names insurance. The wordings of individual contracts will ensure that case law will continue.

Care is needed with the terminology on joint names clauses. A joint insured is not the same as a coinsured. Joint insureds have an undivided interest in the same subject matter. A coinsured is insured for its own individual interest, which may be different in nature to the other coinsured. This point is important because an insurer would not penalise an innocent party for, say, non-disclosure or fraud where the party is a coinsured ( Woolcott v Sun Alliance and London Insurance (1978) and State of Netherlands v Youell (1997)), but it would probably do so with joint insureds. The JCT 2016 contract clarifies the intention by referring to "composite insureds" in the joint names insurance definition.

Utmost good faith and warranties

In August 2016 the Insurance Act 2015 came into force. This is a significant change to insurance law. It deals with:

• The duty of disclosure
• Warranties
• Insurance fraud, and
• Creation of proportionate remedies.

The onus is now on the insurer to be more proactive rather than relying on the policyholder to reveal material facts. Insurers' right the onus of providing a fair representation of the risk which now includes a secondary duty of carrying out a reasonable search of information sufficient to put the underwriter on notice.

A warranty will no longer have the effect of automatically avoiding the contract. Instead it will be treated as a suspensive condition, i.e. Cover will be suspended until the breach is remedied and will then be reinstated.

Basis of the contract clauses have also been outlawed under the act. The legislation also deals with the increasing insurance fraud problem and provides the necessary procedures to enable the Third Party (Rights against Insurers) Act 2010 to become operative. The proposed Enterprise Act will also affect insurance claims which will have to be paid promptly by insurers. A complex construction claim may prove even more difficult to handle. 

Insurable interest

Recent case law has interpreted this long-established insurance principle more liberally so as to give efficacy to business situations, thus avoiding problems and delays.

One such case was Glengate-KG Properties v Norwich Union (1995), where on a technical point architects could have been in breach of a material damage proviso in a business interruption policy. The material damage proviso states that a claim will not be paid under the business interruption policy unless a claim for direct damage has been paid under a material damage policy. The court, however, adjudged that there were two types of insurable interest: one where property was owned, and one where the property concerned was relied upon by the claimant. In the latter case the claimant could therefore insure the property and would not breach the material damage proviso.

Other similar decisions arose in the cases of Feasey v Sun Life Assurance Corporation of Canada (2003) and Ramco (UK) Ltd v International Insurance Co of Hanover Ltd (2005). In both cases it was held that any lack of insurable interest should not defeat a legitimate commercial transaction. Recent case law has also shown that subcontractors are entitled to insure the whole of the contract works, even where they are only contractually obliged to carry out part of them ( Petrofina (UK) v Magnaload Ltd (1984) and National Oilwell (UK) Ltd v Davy Offshore Ltd (1993)).

These attempts to widen the scope of Insurable interest will continue to be scrutinised closely. In David Cowan v Jeffery Associates & Others (1998), the claimant was the proprietor of a company. He purchased the property in which the company was based with the aid of a bank loan. On the bank's instructions he insured the property. He was the owner and sole shareholder of the company but his Insurable interest only extended to the value of the shares in the company, and he could not recover when the property was damaged. This decision followed the much earlier case of Macaura v Northern Assurance (1925).

Another variation is the relationship between landlord and tenant.  In Mark Rowlands Ltd v Berni Inns Ltd (1986) 1QB211, it was acknowledged that a tenant who pays an insurance premium to a landlord as part of the lease agreement does have an insurable interest in the building, even if the tenant is not named in the policy nor has arranged the insurance.  Where such a lease wording applies the landlord has impliedly agreed to use the insurance proceeds to reinstate the property and to exempt the tenant from liability.  Insurers could not therefore pursue subrogation rights against a negligent tenant as their policyholder had no such claim in the first place.

Main insurance clauses in the JCT contract

Introduction

The current JCT contracts in use are the 2011 versions, the main ones being the Standard Building Contract and the Design and Build form. The wording of the clauses does not vary much at all from the 2005 editions, but the format is now sectionalised and follows other leading standard forms such as NEC4.

The indemnity and insurance clauses are contained in Section 6. There are 9 sections in all and Sections 2 and 7 also have some relevance to insurance.

Section 2

Section 2 sets out the responsibilities of the contractor for the carrying out of the works and covers areas such as early use of the premises by the employer, the contractor's designed portion (when applicable) unfixed materials and goods on and offsite and the extent of the contractor's design liability. Practical completion and early possession of the site is also dealt with in Section 2, so it is important to ensure that the contract works and liability insurances comply with the requirements.

Section 6

The main insurance provisions appear under Section 6 (injury, damage and insurance).

The individual sub-clauses are:

6.1.	Indemnity clause in respect of bodily injury to other parties.
6.2.	Indemnity clause in respect of loss of, or damage to property.
6.3.	Clarifies that "property" in clause 6.2 does not include the works themselves, or any property to be insured by the employer under Option C (below).
6.4.	The insurance requirement to back up the indemnities given in clauses 6.1 and 6.2. This means employers' and public liability insurance, including product liability.
6.5.	This is the old "21.2.1." employer's risk clause, and the wording is virtually unchanged from the 1998 version.
6.6.	The excepted risks (that is, no indemnity required to be given or insurance effected against the excepted risks defined under clause 6.8.)
6.7.	Replaces what was clause 22 in the 2005 version. Clause 22 offered options for joint names insurance under 22A, 22B or 22C. These options are now outlined in Schedule 3 of the 2011 agreement as options A, B or C, See below under Contract works and joint names insurance clauses.
6.8.	Sets out various insurance definitions. These are specified perils, all risks, terrorism damage and excepted risks.
6.9.	Relates to sub-contractors and the extent of their protection under the joint names clauses. Sub-contractors are not defined at all in the 2011 contract, but come under the definitions of contractor's persons or employer's persons. Joint names protection applies only to specified perils cover on the works and materials. Therefore no sub-contractor has immunity in respect of damage to existing structures or contents. (In the 1998 version, a nominated sub-contractor did have protection, but a domestic sub-contractor did not).
6.10.-6.11	6.10.1 is a requirement either to take out a separate joint names policy for terrorism damage, with Pool Re or other agreed underwriter, or to include the risk under the joint names "all risk" insurance requirement under Options A, B or C of Schedule 3. The insurance under the separate policy should be for the same amounts as specified in the contract particulars. Clause 6.10.2 confirms that any contractor's Pool Re terrorism premium is chargeable against the contract sum, and Clause 6.10.3 provides the same benefit for non-Pool Re cover. Clause 6.10.4 relates to Option A where the employer is a local authority and states that, if the terrorism damage premium rates rise, they may instruct the contractor to cancel the terrorism insurance. The procedure to be adopted, should such cover not be available or not taken up, is now under clause 6.11.
6.12.	This clause calls for professional indemnity insurance to be taken out and maintained. Under the Standard Building Contract it only applies if the contractor's design portion option is taken up. In the Design and Build version it is mandatory. Clause 6.13 sets out the alternative solutions, should such cover become unavailable at reasonable rates.
6.14 - 6.17.	These refer to the Joint Fire Code. If the contract particulars confirm that it applies, the parties must comply - the employer must ensure compliance by all employer's persons and the contractor must ensure compliance by all contractor's persons. Compliance with the Code may well also appear as a condition in contract works insurance policies.

Section 7

This section now incorporates direct rights to be given to third parties, specifying the collateral warranties to apply. The beneficiaries must be named in the contract particulars at the outset. Failure to do so would mean that the benefit would not apply.

The only assignments allowed are those agreed by the parties and specified.

Contract works clauses and joint names insurance

The options A, B or C referred to in sub-clause 6.7 are a replica of clauses 22A, B or C in the 1998 contracts.

All insurance on the works and materials is to be in the joint names of the employer and the contractor, including sub-contractors, or subrogation rights are to be waived against them.

The options are:

Option A

The contractor to take out a joint names insurance cover for all risks in respect of new building work. This is to be for the full reinstatement value of the works plus a percentage for professional fees and debris removal costs, and operates up to the date of issue of a certificate of practical completion.

Option B

The employer is to take out a joint names insurance for all risks in respect of new building work on the same terms and conditions as for option A. This option is chosen either because the employer is very large (for example, a local authority) and can purchase works insurance more cheaply, or because they wish to have control of the insurance programme.

Option C

Option C relates to work on existing buildings and is in two parts. Option C1 requires the employer to take out joint names insurance for specified perils in respect of the existing structures and their contents. Option C2 requires the employer to take out joint names insurance for all risks on the works and materials.

There is a small change in the JCT 2005 (now 2011) special perils definition. JCT 1998 referred to "…flood, bursting or overflowing of water tanks, pipes or other apparatus" whereas the 2011 version now refers to "… escape of water from any water tank, apparatus or pipes."

Some parties may find it difficult to obtain insurance on this basis because insurers are loath to relinquish their subrogation rights, particularly against negligent contractors or sub-contractors. A footnote in JCT 2016 explains how tenants or homeowners may provide for an alternative arrangement, for example, by using option A and relying on the contractor's public liability insurance.

Further footnotes in JCT 2016 refer to market practice on all risks insurance regarding differences in cover, particularly for terrorism damage and professional advice, also on the level of design and workmanship cover where the preferred level of cover is set out in the joint names insurance definition. Insurance advisers need to check this point.

Contract works policies usually include cover for items other than the works - for example, owned plant, hired plant and employees' tools. This is not a requirement of the JCT contract, but is clearly an important part of the contractor's protection.

A point to note is that damage caused on a site may not fall within the given definition of the specified peril, so that a contractor or sub-contractor may not then enjoy the benefit of the joint names provision.

One example of this arose in the case of Computer Systems and Engineering plc v John Lelliot (Ilford) Ltd (1991) where a sprinkler pipe was negligently damaged by a sub-contractor and the ensuing loss was not classed as a "flood" or a "burst water pipe" as defined under clause 22C of JCT 80.

In another similar case - Board of Trustees of the Tate Gallery v Duffy Construction Ltd (2007) - the judge held that, in the particular circumstances presented in the case, the valve and connection together formed a pipe and that when it became uncoupled, that constituted a burst. Also, that the volume of water resulting (1.4 metres depth) was sufficient to constitute a flood. Much therefore depends on the wording of the building contract along with the Court's interpretation of the facts in each case. Duffy was therefore able to secure the protection of the joint names provision.

Partial possession

JCT clauses 2.33 to 2.36 deal with the taking of partial possession by the employer. A dispute may arise where such possession takes place prior to the issue of a certificate of practical completion. In English Industrial Estates Corporation v George Wimpey & Co Ltd (1973), fire damage occurred in a building prior to practical completion, but after the works had been possessed by the lessee.

The contractor maintained that the works insurance was no longer its responsibility. However, the architect had not inspected the parts concerned, nor issued a certificate denoting the value of the work done, or the date. The contractor therefore remained responsible. A differently worded insurance policy could however have caused problems for Wimpey, and it is therefore important to notify insurers to ensure continuity of cover in such circumstances.

Proposed new JCT 2016 contracts

The JCT are currently engaged in updating their suite of contracts. The JCT Minor Works options already operate as from June 2016. The other main contract will be published shortly. The 2016 versions will provide for the grant of Performance Bonds and Parent Company Guarantees and the optional provisions for the obtaining of collateral warranties from sub-contractors now extend to the alternative of the granting of third party rights to sub-contractors. Works insurance option C has also been modified to allow alternative solutions to the problems encountered by tenants and domestic sub-contractors in obtaining existing structures cover for contractors.

Insurance aspects of other contracts

NEC Engineering and Construction Contract (NEC4 2005)

NEC contracts are now being used extensively. There are a number of contracts and subcontracts, the main one being the Engineering and Construction Contract, the latest edition of which is NEC4, dated June 2005.

The document contains core clauses, of which those in section 8 relate to risks and insurance. There then follows a series of secondary option clauses, some of which affect the insurance requirements.

Contractor's main responsibilities

Section 2 covers the contractor's main responsibilities, in particular:

• responsibility to provide the works;
• design input;
• approval of contractor's design by the project manager;
• responsibility for the subcontractor's work.

Subcontract conditions are to be approved unless an NEC sub-contract is used or the project manager has agreed that no submission is required.

Time

Section 3 defines the starting and completion dates in some detail, but for the purpose of contract works insurance, the project manager decides the date of completion.

Care is needed to ensure the contract works insurance wording dovetails with the employer's property insurance wording (see English Industrial Estates Corporation v George Wimpey & Co Ltd (1973)).

Testing and defects

Section 4 deals with testing and defects. The procedures for inspection, testing and rectifying defects are complex and care is needed to ensure that the contract works insurer is aware of when the full "all risks" cover is to cease and the defects liability period begins. This will usually be accepted as the date on which the completion certificate has been issued.

Risks and insurance

Section 8 sets out clearly which are the employer's risks and which are the contractor's risks.

The employer's risks (clause 80.1) are:

• claims, proceedings, compensation and costs payable which are due to -
  • use or occupation of the site by the works or for the purpose of the works which is the unavoidable result of the works,
  • negligence, breach of statutory duty or interference with any legal right by the employer or by any person employed by or contracted to him except the contractor, or
  • a fault of the employer or a fault in the employer's design;
• loss of or damage to plant and materials supplied to the contractor by the employer, or by others on the employer's behalf, until the contractor has received and accepted them;
• loss of or damage to the works, plant and materials due to war and related risks, strikes, riots and radioactive contamination;
• loss of or wear or damage to the parts of the works taken over by the employer, except loss, wear or damage occurring before the issue of the defects certificate;
• loss of or wear or damage to the works and any equipment, plant and materials retained on the site by the employer after termination;
• additional employer's risks stated in the contract data.

The contractor's risks are any of the risks which are not carried by the employer between the starting date and the date of issue of the defects certificate, subject to no additional risks being specified in the contract data. This means that the contractor will need to take out employer's and public liability insurance and contract works insurance, including cover for contractor's equipment. (These requirements are set out in detail in an insurance table in clause 84.2.)

The insurances are in the joint names of the parties and provide cover for events which are at the contractor's risk from the starting date until the defects certificate or a termination certificate has been issued.

The contractor must submit relevant current policies and certificates to the project manager. They must comply with the contract requirements. A waiver of subrogation against directors and employees is required, except where there is fraud. This is accepted market practice. Uninsured contingencies are to be borne by the party whose risks they are responsible for (as in clauses 80.1 and 81.1.).

Secondary option clauses

The secondary option clauses are numerous but those relevant to insurance are:

• Option X4. Parent company guarantee so the parent company's name must be noted in the contractor's policy.
• Option X7. Delay damages. Where the contract data states that such damages will apply, the contractor may wish to consider delay damages insurance cover.
• Option X12. Partnering. Where such an arrangement applies, insurers will wish to restrict their liability to causes involving their own policyholder only, as they cannot and will not be expected to pick up the risk of other parties.
• Option X13. Performance bond. If this option applies, an approved bond must be provided by a bank or insurance company for the amount stated in the contract data.
• Option X15. Limitation of the contractor's liability for its design to reasonable skill and care. This is a common option in building contracts. The JCT design-and-build contract, for example, limits the contractor's design liability to that of a professional, that is, to exercise reasonable skill and care (clause 2.17).
• Option X18. Limitation of liability. This requires careful study by brokers and other advisers because it can materially change the levels of responsibility set out in the core clauses. The X18 option is in several sections, limiting the contractor's liability in various areas to the amounts specified in the contract data. For example, the employer's consequential losses, the any one event limit, liability for design defects and other matters, other than excluded matters (which are listed under X18.4). A copy of the original contract document should therefore be studied when giving advice to the contractor or the employer. Reference to a standard wording, without referring to the Contract Particulars, will not enable the correct advice to be given.
• Option Y(UK) 3. The Contracts (Rights of Third Parties) Act 1999. This option provides that a person or organisation which is not one of the parties to the contract may enforce a term of the contract under the 1999 act, but only if the term and the person or organisation are stated in the contract data. The insurance industry has not adopted the provisions of the 1999 act. If this clause were activated therefore the contractor's insurance cover would not comply with the terms of the contract.

Institution of Civil Engineers

The Institution of Civil Engineers have withdrawn from the ICE Conditions of Contract and is endorsing the NEC4 suite of contracts. The ICE's part-ownership has been transferred to the Association for Consultancy and Engineering (ACE) and the Civil Engineering Contractors' Association (CECA), and previous ICE brands were withdrawn as from 1 August 2011.

ACE and CECA launched a new standard suite of forms for contracts, based on the former ICE conditions and known now as the Infrastructure Conditions of Contract.  The new conditions reflect the requirements of the Local Democracy Economic Development and Construction Act 2009 but there was no change in the risk allocation or contract procedures.

There are a number of versions of the infrastructure conditions ranging from a Term Version, Design and Construct, Ground Investigation to Minor Works Contracts.  The Design and Construct version makes the Contractor responsible for all aspects of design and construction including any design originally provided by or on behalf of the Employer, unless otherwise stated.

Federation Internationale de Ingenieurs - Conseils (FIDIC)

The current FIDIC suite of contracts were published from 1999 onwards and consist of the following versions:

• Construction for Building and Engineering Works Designed by the Employer (Red Book);
• EPC and Turnkey Projects (Silver Book);
• Short form of contract (Green Book);
• Dredging and Reclamation (Blue Book);
• Client/Consultant Model Agreement (White Book);
• Design, Build and Operate (Gold Book) 2003;
• Design Build - Turnkey (Orange Book) 1995
• Plant Design - Build (Yellow Book).

FIDIC is the global representative for the consulting engineering industry. Each of the above forms will have their own relevant features, but essentially, clauses 17 and 18 of the main contracts deal with risk, responsibility and insurance. 

The Red and Yellow books also include obligations of fitness for purpose design responsibility. In the Gold Book, the engineer is the agent of the employer. The engineer is primarily responsible for contract administration and will issue instructions and notices, monitor the works and act as certifier.

The FIDIC Plant Design-Build form was published in 1999. Points to note on this and the other major forms are as follows:

• "Plant" should not be confused with contractor's plant. Here, it means the apparatus and machinery intended to form, or forming part of the permanent works.
• Condition 5 imposes a design responsibility on the contractor, but under clause 18 there is no specific requirement to take out professional indemnity cover.
• A cross liability clause is required, despite reference to joint insureds. This differs from the comparable JCT clause.
• Care is needed to ensure that the contractor's policy wordings will cater for the variations outlined in clause 18. (The contractor normally insures the works damage risk, unless the contract states otherwise).

The testing, commissioning and handover procedures are more complex than under the JCT Contracts and insurers will need to underwrite this risk carefully.

GC/Works/1

The GC/Works/1 contract (1998) relates to both building and civil engineering works. (GC/Works/1 is one of the Government's major contract forms. There are several variations for different types of work, numbered up to GC/Works/10).

The insurance provisions are set out in conditions 8 and 8A:

• Condition 8(2) requires the contractor to maintain employer's liability cover for £10m.
• Condition 8(3) requires public liability and contract works insurance but with three alternatives:
  
  • A - The contractor is to maintain construction all risks cover in joint names for the full reinstatement value, plus 15% for professional fees, plus public liability insurance for the amount specified in the particulars.
  • B - The contractor is to maintain other insurances specified in the summary of essential requirements in the contract.
  • C - This is an alternative unique to government contracts, as it changes the emphasis on insurance requirements according to whether the employer is acting at the time as a minister of the Crown, a government department or other Crown agency. As a minister of the Crown the employer would be responsible for loss or damage to the works, but would not have to effect insurance. When not acting as a minister of the Crown, the employer does need to insure.
• Condition 8A requires professional indemnity insurance from the contractor, if specified in the contract particulars.
• Condition 10 sets out alternative design liability clauses:
  
  • Alternative A sets out to limit the Contractor's design liability to that applicable to that of an architect or other professional designer. This is similar to clause 2.17 of the JCT Design and Build agreement.
  • Alternative B is more onerous. The contractor warrants to the employer that any works designed by the contractor or their team will be fit for its purpose as described in the contract. This liability is not affected by any warranty that the employer may have obtained from any sub-contractor. Care is needed here to ensure that insurance back-up is available. 

The government has recognised the popularity of the NEC contracts and has adopted the NEC for many of its own contracts.

Institution of Chemical Engineers

The Green Book (Reimbursable Contracts) is one of the main forms of the Institution of Chemical Engineers contract (2002, revised 2007). Key points are as follows:

• The works are insured by the purchaser (clause 31) in the joint names of the purchaser, project manager, contractor and subcontractors, for the full reinstatement value.
• The purchaser's other property on site is also its responsibility to insure (31.3).
• Under clause 31.4 the contractor has to insure its indemnity to the purchaser under clause 30.7 (that is, damage to purchaser's other property up to £5m), for loss or damage to the contractor's equipment and for legal liability to third parties for a minimum of £5m.
• The testing and takeover procedures are complex and care is needed over policy wordings.

The IChem E contracts provide several options, as follows:

• Red Book (lump sum contracts) 2001;
• Green Book (as above - reimbursable contracts) 2002;
• Orange Book (minor works) 2003;
• Yellow Book (sub-contracts) 2003;
• Brown Book (civil engineering sub-contracts) 2004;
• Similar options for overseas contracts 2007.

Special risks

Professional risks

"Professional risks" refers to the design and advice risks, that is, of architects, consulting engineers, chartered and quantity surveyors, project managers, landscape consultants and any other specialists, including design-and-build contractors. The majority of building contracts are now procured on a design-and-build basis. Most building contracts now have a design-and-build version, notably the JCT 2016 contract.

Clause 2.17 of the design-and-build version of JCT 2016 makes the contractor responsible for the design of the works even if it does not employ its own design team. The wording of the clause is intended to restrict the liability to the level of a professional, ie an architect or consulting engineer. This means there is a duty to exercise reasonable skill and care. Total reliance on this may be premature, however, as there is considerable precedent to demonstrate a higher duty of fitness for purpose, for example Viking Grain Storage Ltd v T H White Installations Ltd (1985), IBA v EMI Electronics Ltd and BICC Construction (1980) and Greaves & Co (Contractors) v Baynham Meikle & Partners (1975).

Even where there is no express term of fitness for purpose in the contract, the client could rely on an implied term (John Lelliot (Contracts) Ltd v Byrne Brothers (Formwork) Ltd (1992)). However, a term will generally only be implied where the employer informs the contractor of the specific purpose for which the works are required and also relies on the contractor's skill and judgement. This was established in the Viking Grain Storage case mentioned above, but not in the more recent case of Jewson Ltd v Kelly (2003).

A design-and-build contractor has a duty to supply a building which is suitable for its purpose and of merchantable quality to comply with the Supply of Goods and Services Act 1982. These requirements are the implied terms of fitness for purpose in building contracts, and under the Defective Premises Act 1972, there is an express term that a dwelling will be fit for habitation.

In JCT 1998, clause 2.5.1 did not call for professional indemnity insurance, but the JCT 2005 (now 2011) contract now specifically requires such cover under clause 6.12. This cover applies both under the standard form of contract in respect of the contractor's designed portion option (if applicable) and to the design-and-build version.

When professional indemnity cover is being negotiated the following points require attention:

• The cover is written on a claims-made basis so that notification of claims or circumstances must be prompt.
• Cover may be on an aggregate or each-and-every-loss basis. The latter is preferred. If aggregate-only cover is available, the monetary limit should be as high as possible.
• Collateral warranties are often requested and the wording of these needs to be closely checked and approved by insurers.
• Only the professional risk is insured. For design-and-build contractors, problems arising from faulty workmanship or materials are not insured.
• One or two insurers offer wider financial-loss cover for certain trades, for example electrical work and heating and ventilating work.

Protection for the contractor also needs to be considered with respect to pre-novation services provided by the consultant. Construction contracts are often novated. Novation is the process of substituting a new contract in place of the original one. Unlike assignment, all responsibilities as well as rights transfer to the new party. Novation arises in construction contracts where a client may ask an architect or engineer to carry out design and other technical work. A contractor is then appointed to carry out the building, and the contractor is substituted for the architect in the contract. Unless the contract is worded correctly, the contractor may become responsible for errors made by the architect during the pre-novation period.

The leading case is Blyth and Blyth v Carillion Construction Ltd (2001), where the contractor became responsible for the extra costs of steel reinforcement wrongly underestimated by the consultant. The employer had suffered no loss, so the contractor was also unable to recover by way of contribution under the Civil Liability (Contribution) Act 1978. As a result of this case, new standard forms of novation agreement have been drawn up under which the consultant provides the contractor with a warranty in respect of pre-novation services, thereby depriving the consultant of the "no loss" defence. These agreements have been drawn up by the City of London Law Society and the Construction Industry Council.

In another example of novation, the original contractor, or the employer, may go into liquidation or run out of funds, and the contract is novated to a new contractor.

Collateral warranties have been a feature in building contracts since the decisions in Murphy v Brentwood DC (1990) and D&F Estates Ltd v Church Commissioners for England (1989), which held that a defect in a building constituted economic loss and could not therefore be actionable in tort. Following these decisions, collateral contracts are used widely to create a contractual network (economic loss is recoverable where there is a breach of contract).

The Murphy case attempted to set out the criteria for deciding what was recoverable damage in tort, and what was economic loss, ie the complex structures theory.

The key questions are:

• Was the defective part integral to the whole building (for example, foundations) or was it a separate component (for example, a boiler)?
• Was the defective part supplied and installed at the same time as the main structure?
• Was the defective part supplied by a different party?

An example of the complex structures theory outlined in Murphy is Jacobs v Morton and Partners (1994), where it was held that defective foundations of a house were separate to the main building as they were designed and built by different contractors and at a different time.

Insurers are prepared to offer collateral warranty extensions but the wording will be restricted, that is:

• Assignments will be limited to two.
• There will be no fitness-for-purpose cover or express guarantee.
• Cover will not extend beyond the timescale under the Limitation Act 1980.
• Net contribution clauses will be suitably worded.

Net contribution clauses are a vital part of the collateral warranty wording. As the law stands, where two or more parties to a contract are responsible for a loss suffered by a claimant, each is liable to the claimant for 100% of the loss. If the degree of fault of each party is 50%, this figure may be apportioned in contribution proceedings. This depends, however, on the ability of the other party to pay. The contribution provisions arise under the Civil Liability (Contribution) Act 1978, but this will be ineffective unless the net contribution clause in the collateral warranty agreement is drafted correctly.

Contribution can only be claimed where the party seeking contribution is liable for the same loss or damage as the other responsible party. Joint names clauses in building contracts are a case in point. In Cooperative Retail Services Ltd v Taylor Young Partnership Ltd (2002), an architect's claim for contribution against a contractor for fire damage based on defective workmanship was rejected. The contractor was not liable to the principal because of the joint names provision, so the architect was unable to claim under the 1978 act.

Directors' and officers' liability

This class of business is growing steadily and recent case law, and statutes in particular, have added to the burden of business and its individual officers. The construction industry is no less exposed to such claims, particularly in view of its safety record.

A new companies act is now in force. The Companies Act 2006 is an update of the companies acts 1985 and 1989, and parts of the latter will remain in force.

Corporate manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 will increase the presure on the construction industry. It creates the offence of corporate manslaughter (in England) and corporate homicide (in Scotland) and applies to the corporate entity, not to the individual director. The relevant duty of care includes that arising from the carrying on by the organisation of any construction or maintenance operations. Reference to the law of negligence includes liability under the occupiers' liability acts 1957 and 1984, the Occupiers' Liability (Scotland) Act 1960 and the Defective Premises Act 1972.

Case law under the 2007 Act has already set out some guidelines. In R V Cotswold Geotechnical Services Ltd (2011), it was held that the system of digging was dangerous and the defendants had ignored recognised industry guidelines and allowed employees to enter into and to work in unsupported trial pits up to 3.5 metres deep.

Minimum fines are normally £500,000, but Cotswold were fined £385,000 due to their small size and parlous financial position. Other issues still need to be resolved, such as, where an action is brought for breaches of both statutes, reconciling the different onus of proof between a breach of the 2007 Act and of Section 2 of the Health and Safety at Work etc Act 1974.

Insurance cover for defence costs under the 2007 Act have now been included in liability policies in respect of criminal proceedings, including appeals. An inner monetary limit applies and the costs cover is inclusive of the indemnity limit.

Additional insurances

The insurances referred to above cover the main classes of business carried out by construction professionals and contractors, usually on an annual basis. There are, however, numerous other insurance requirements relating to particular contracts.

Legal liabilities of the employer

The employer will require protection for its legal liability arising out of the site operations. Originally this was a gap in the employer's protection, highlighted in the case of Gold v Patman & Fotheringham (1958). The risks arise mainly in the law of nuisance and relate to subsidence, collapse, removal of support, heave and lowering of ground water. 

The gap arises because:

• the JCT clause in question at the time referred to the contractor's obligations to insure his own liabilities, not those of his client;
• the contractor may not have been negligent in causing the damage, so his public liability insurance would not respond;
• similarly, the architect's design or specification may not have been a factor in the loss, so his professional indemnity insurance would not apply;
• the damage may have been inevitable, despite all precautions, and as such would not be insured.  (The special cover developed for this situation also excludes inevitable damage.)

In the Gold case, the employer was held liable for the nuisance based claim, and found himself without recourse to insurance. To remedy this for future situations, a clause was inserted into the then RIBA agreements. Originally known as clause 19(2)(a) insurance it became 21.2.1 in later JCT editions, and now appears as clause 6.5.1 in JCT 2016.

The perils insured under a 6.5.1. policy are as outlined earlier in this section.

The cover is written in the joint names of the employer and the contractor, for the benefit of the employer and written by the contractor's insurer, who are more familiar with the risks involved. The indemnity limit may be on an each and every loss or aggregate basis, and an excess will apply to cut out minor claims.

Notable exclusions are:

• negligence of the contractor or sub-contractor;
• errors or omissions in the planning or designing of the works;
• inevitable damage;
• damage which it is the responsibility of the Employer to insure under Option C or B of the JCT agreement.;
• liability under a contract, which would not have existed in the absence of the contract;
• damage to the works and materials, except where a certificate of practical completion has been issued;
• demolition work, use of explosives, tunnelling or piling, underpinning, or deliberate de-watering of the site.

Overall, the wording of the insurance policy closely follows the JCT clause wording.

It is only a requirement to insure if the project co-ordinator or architect specifies it in the contract particulars.  The risk may well exist, whether the cover is recommended or not. There has been a claim against an architect for failing to specify the cover. It is wise therefore for insurance experts to decide on whether the cover is needed. Detailed underwriting is necessary, coupled with a survey of the site and the surrounding area.

Liquidated damages

Liquidated damages are an agreed monetary sum paid to the employer, if the contractor fails to complete the contract on time. The damages are usually provided for on a weekly basis, for each week of delay. The sum is intended to be compensatory in nature - a sum to reflect the estimated financial loss suffered by the employer as a result of the delay. Liquidated damages should be distinguished from penalty clauses, which are a punitive measure.

Liquidated damages may be imposed on the contractor under JCT 2016 clause 2.29.2, but if "relevant events" occur, these may be reduced or waived. The relevant events are defined in both versions of the contract as including "force majeure, exceptionally adverse weather conditions, a specified peril and civil commotion, strikes etc" as well as a range of situations beyond the control of the contractor.

Fire codes of practice

The JCT contract now also incorporates a fire code of practice requirement (clauses 6.14 to 6.17 in JCT 2016). This is extensive and insurers may also incorporate a similar condition into their contract works policies.

Under clause 6.16, the contractor must ensure that any remedial measures required by the insurers to achieve compliance, are carried out. If the contractor fails to do so, the employer may arrange this and deduct the cost from the contract sum.

Liquidation etc

Protection may be needed by the client should the contractor go into liquidation, or not be able to complete the contract. This would be achieved by calling for a surety bond, either from a bank or insurance company. The usual form of performance bond is on a conditional wording (ie there must be fault on the part of the contractor), and is usually for 10% of the contract price. Other bonds may be appropriate depending on the circumstances, for example Highways Act bonds to cover the additional costs to the highway authority should the private contractor fail to complete the work. Such bonds are usually for 100% of the original contract price.

It should be noted that unconditional or on-demand bonds are usually issued by a bank, whereas an insurance company bond is almost certainly written on a conditional basis. Care is needed when choosing a surety, as it is preferable to have the protection of "secondary" liability under an insurance-backed bond, ie where fault has to be proved, and where the bond security does not eat into any overdraft facilities.

The contractor may wish to take out credit insurance in the event of the insolvency of the employer or protracted payment default on the part of the employer. Other bonds which may be called for are retention bonds, advance payment bonds, bid and tender bonds, and tenant default indemnities.

Latent defects insurance

Despite the existence of contractor's liability insurance and professional negligence, the employer may call for latent defects insurance. This would provide automatic cover for major structural defects, usually for a period of 12 years from date of practical completion. A large deductible is usual and not every contingency is insured. Subrogation rights may or may not be waived against other parties. The cost is also an inhibiting factor.

Private Finance Initiative

Recent large contracts procured under the Private Finance Initiative may require more sophisticated protection to cover the concession period for the facility. A comprehensive risk-management-based cover is available, backed by a latent defects insurer.

Private Finance Initiative contracts also require long-term insurance arrangements to cover the construction phase, and in particular the operational phase. One-off project covers are difficult to place in today's market so that annually renewable covers are usual at the moment.

The basis of PFI is under review by the UK Government, as it has not generally resulted in financially viable solutions.

Loss of revenue

Revenue is a feature of all building contracts and all parties may suffer financial losses due to a delay in start-up. The nature of the loss will vary according to the individual party's position. Contractors may lose revenue by not having a site to work on, or they may incur increased costs in order to maintain revenue. Contractors with their own fabrication workshops are in a more vulnerable position. Property developers could suffer losses due to:

• continuing interest payments to the funders;
• loss of future rental income;
• loss of use of the profit which has been delayed.

Advance rent and interest cover is available in a limited market.

One of the main consequential loss exposures arises where a project is delayed due to a major peril such as fire, flooding or extreme storm conditions. Delay in start-up insurance cover is a comparatively new type of cover and provides a flexible solution for major projects worldwide. It is really advanced or anticipated profits insurance, and differs from the conventional annual trade cover, in that:

• there are no previous fiscal trends, so cover is based on budgets and forecasts;
• it is based on construction hazards, rather than trade hazards;
• it provides much wider cover, taking in worldwide marine risks and wider perils;
• cover is activated by the time delay, ie the period from when trading should have commenced, compared to when it actually commenced, irrespective of the number of causes leading to the delay. Contrast this with normal business interruption cover where the delay is activated by one specific peril.

This type of cover is bespoke and is becoming more popular with the larger insurance buyers.

Environmental impairment liability insurance

Demand for environmental impairment liability insurance is increasing. Liability policies exclude gradual pollution risks, and where sites are sold or acquired warranties and indemnities are now required to enable transactions to proceed. Insurance backup is available.

Terrorism cover

Terrorism damage is a consideration particularly in major cities such as London. Commercial insurance policies exclude the risk, but separate cover can be purchased through Pool Re or insurance company schemes. Full cover from the ground up is available and the 'buy back' cover should dovetail with the insurer's commercial policy terrorism exclusion. All assets must be insured.

JCT 2016 is very specific on this subject. The all risks definition requires terrorism damage to be insured.

Terrorism damage is no longer limited to fire and explosion, but includes physical damage caused by impact or by nuclear, biological or chemical contaminations. However, risks reinsured by Pool Re remain limited to acts of terrorism within the Reinsurance (Acts of Terrorism) Act 1993 - that is, "any act of any person acting on behalf of or in connection with any organisation, with activities directed towards the overthrowing or influencing of any government de jure or de facto, by force or violence".

Different insurers' terms and conditions also vary, so advice should be sought.

Clause 6.12 of JCT 2016 also sets out the procedure should such cover not be taken up or become unavailable in the future.

Other insurances

More unusual and occasional situations may arise where an insurance indemnity may be required, for example delay due to discovery of archaeological objects in the ground, cost overrun on large contracts, walkaway clauses (loss of net profit following sale of a site or building due to non-completion), political risk insurance (overseas risks) and trade disruption cover.

Project insurance

Most insurances required for construction projects are arranged on an annual basis by the respective parties, to cater for their own responsibilities either at common law or as required by the contracts that they enter into. For larger projects, particularly involving joint ventures, the parties may agree to arrange the insurance on a one-off basis to cover the works and the third party risks of all parties, with a waiver of subrogation rights.

Such a policy is not the total solution, as it is likely to exclude professional indemnity risks and the employer's liability risk of the contractors. Some annual insurances are still, therefore, necessary.

This is usually coordinated by the Employer insuring on behalf of all contractual participants.  Such a programme will consist of:

• Works
• Third Party Liabilities
• Delay in Completion

There are pros and cons attached to these arrangements.  On the positive side:

1. There is a single focus for insurance thus reducing possible gaps in protection and hence less disputes;
2. The programme can be tailored to suit the Employer's particular requirements;
3. Value for money - no need to check individual insurance covers.  Coordinated claims reporting and procedure and hence more control over the repair and reinstatement of property;
4. Some financial exposures may not otherwise be adequately covered by individual contractors.

On the down side there may be higher excess or self insurance levels than in individual covers and contractors may be tempted to take a more relaxed attitude to risk management.  Unnecessary dual insurance may arise with possible conflict between insurers unless clear intention is shown in the project document.

Expertise is needed by those responsible for arranging such programmes.

Further information

Legislation

• Civil Liability (Contribution) Act 1978
• Companies Act 2006
• Construction, Design and Management Regulations 2015
• Construction (Design and Management) Regulations 2007(SI 2007 no 320)
• Contracts (Rights of Third Parties) Act 1999
• Corporate Manslaughter and Corporate Homicide Act 2007
• Defective Premises Act 1972
• Limitation Act 1980
• Occupiers' Liability Act 1957
• Occupiers' Liability Act 1984
• Occupiers' Liability (Scotland) Act 1960
• Reinsurance (Acts of Terrorism) Act 1993  
• Supply of Goods and Service Act 1982

Case law

• Blyth and Blyth v Carillion Construction Ltd [2002] SLT 961; 79 Con LR 142; [2001] GWD 13-473
• Board of Trustees of the Tate Gallery v Duffy Construction Ltd (2007) EWHC 361 (TCC)
• Computer Systems and Engineering plc v John Lelliot (Ilford) Ltd (1991) C A
• Cooperative Retail Services Ltd v Taylor Young Partnership Ltd [2002] UKHL 17; [2002] 1 WLR 1419; [2002] 1 All ER (Comm) 918; [2002] BLR 272; [2002] TCLR 9; 82 Con LR 1; [2002] Lloyd's Rep IR 555, HL
• David Cowan v Jeffery Associates & Others (1998), Lucena v Crawford (1806), Mark Rowlands Ltd v Berni Inns Ltd (1986) 1QB211
• Deepak Fertilisers and Petrochemical Corporation v Davy Mckee (London) Ltd and ICI Chemicals and Polymers Ltd [1998] (QBD) 2 Lloyd's Rep 139
• D&F Estates Ltd v Church Commissioners for England [1989] AC 177; [1988] 3 WLR 368; [1988] 2 All ER 992; 41 BLR 1; 15 Con LR 35; [1988] 2 EGLR 213; (1988) 4 Const LJ 100; [1988] EG 113 (CS); (1988) 85(33) LSG 46; (1988) 138 NLJ Rep 210; (1988) 132 SJ 1092, HL
• English Industrial Estates Corporation v George Wimpey & Co Ltd [1973] 1 Lloyd's Rep 118; 7 BLR 122; 71 LGR 127; (1972) 116 SJ 945, CA (Civ Div)
• Feasey v Sun Life Assurance Co of Canada [2003] EWCA Civ 885; [2003] 2 All ER (Comm) 587; [2004] 1 CLC 237; [2003] Lloyd's Rep IR 637; (2003) 100(34) LSG 30; (2003) 147 SJLB 813, CA (Civ Div)
• GD Construction (St Albans) Ltd v Scottish and Newcastle plc [2003] EWCA Civ 16; [2003] 6 EGCS 144; [2003] NPC 8, CA (Civ Div)
• Glengate-KG Properties Ltd v Norwich Union Fire Insurance Society Ltd [1996] 2 All ER 487; [1996] 1 Lloyd's Rep 614; [1996] CLC 676; 49 Con LR 78; [1996] 5 Re LR 50; (1996) 12 Const LJ 266, CA (Civ Div)
• Gold v Patman & Fotheringham [1958] 1 WLR 697; [1958] 2 All ER 497; [1958] 1 Lloyd's Rep 587; 102 SJ 470, CA
• Greaves & Co (Contractors) v Baynham Meikle & Partners [1975] 1 WLR 1095; [1975] 3 All ER 99; [1975] 2 Lloyd's Rep 325; 4 BLR 56; 119 SJ 372, CA (Civ Div)
• IBA v EMI Electronics Ltd and BICC Construction Ltd [1980] 14 BLR 1; [1955-95] PNLR 179, HL
• Jacobs v Morton and Partners (1994) C.I.L.L. 965
• Jewson Ltd v Kelly [2003]
• John Lelliott (Contractors) v Byrne Brothers (Formwork) (Unreported)
• Lloyds TSB General Insurance Holdings Ltd v Lloyds Bank Group Insurance Co Ltd [2003] UKHL 48, HL
• Midland Bank Trust
• Co Ltd v Hett, Stubbs and Kemp [1978] 3 WLR 167; [1978] 3 All ER 571
• Murphy v Brentwood DC [1991] 1 AC 398; [1990] 3 WLR 414; [1990] 2 All ER 908; [1990] 2 Lloyd's Rep 467; 50 BLR 1; 21 Con LR 1; (1990) 22 HLR 502; 89 LGR 24; (1991) 3 Admin LR 37; (1990) 6 Const LJ 304; (1990) 154 LG Rev 1010; [1990] EG 105 (CS); (1990) 87(30) LSG 15; (1990) 134 SJ 1076, HL
• National Oilwell (UK) Ltd v Davy Offshore Ltd [1993] 2 Lloyd's Rep 582
• National Trust for Places of Historic Interest or Natural Beauty v Haden Young Ltd [1994] 72 BLR 1, CA (Civ Div)
• Netherlands v Youell [1997] 1 Lloyd's Rep 236; [1998] CLC 44, CA (Civ Div)
• Petrofina (UK) Ltd v Magnaload Ltd [1984] QB 127; [1983] 3 WLR 805; [1983]; 3 All ER 35; [1983] 2 Lloyd's Rep 91; 25 BLR 37; (1983) 80 LSG 2677; (1983) 127 SJ 729
• Ramco (UK) Ltd v International Insurance Co of Hanover [2004] EWCA Civ 675; [2004] 2 All ER (Comm) 866; [2004] 2 Lloyd's Rep 595; [2004] 1 CLC 1013; [2004] Lloyd's Rep IR 606; (2004) 148 SJLB 695, CA (Civ Div)
• R V Cotswold Geotechnical Services Ltd (2011) All ER (D) 100
• Tyco Fire and Integrated Solutions Ltd v Rolls Royce Motor Cars Ltd (CA) [2008] EWCA Civ 286
• Viking Grain Storage Ltd v T H White Installations Ltd [1985] 33 BLR 103; 3 Con LR 52; [1985] CILL 206
• Woolcott v Sun Alliance and London Insurance [1978] 1 WLR 493; [1978] 1 All ER 1253; [1978] 1 Lloyd's Rep 629; 121 SJ 744

Useful publications

• Construction insurance: report of Advanced Study Group 208B. London: Insurance Institute of London, 1999.
• Fire prevention on construction sites: the joint code of practice on the protection from fire of construction sites and buildings undergoing renovation. Fire Protection Association. 8th ed. Bedford: Construction Industry Publications, 2012.
• The JCT standard forms of building contract 2011. LexisNexis Tolley. Updated by amendments.
• Wright, John D. Construction insurance: practice, law, reinsurance and risk management. 2nd ed. London: Witherby, 2011.
• Wright John D - Professional Indemnity Insurance in the Construction Industry - Edinburgh Witherby Insurance and Legal, 2013