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Construction Contract Variations

13 May 2014

This important new book on one of the key topics in construction law covers the subject in significantly more depth than any other text and is set to become the recognised authority on the law in this area. The book was published on 27 May 2014.

Change to the scope of work is probably the most common reason projects go over budget. Such variations constitute a very common cause of dispute. They can often be the underlying reason why a project has been delayed. Disputes about variations will often be central to disputes about the termination of contracts and defects.

Construction Contract Variations by Michael Sergeant and Max Wieliczko, both Partners in HFW’s construction law team, deals with the subject in the detail it deserves.

Key issues covered by the book include:

  • The assessment of whether a piece of work is within the contract scope (and therefore something that the contractor must undertake anyway) or whether it is outside the scope, such that it may qualify as a variation.
  • The degree to which a contractor will only be paid for extra work if the employer has approved the change and issued an instruction.
  • The arguments that may be employed by a contractor to establish an entitlement to additional money and time where no instruction has been issued.
  • The extent to which a contractor may be responsible for the design of additional work that was not part of the original scope but was instructed by the employer as a variation.
  • The status of additional or varied work that the contractor undertakes without an instruction.
  • The issues that arise in relation to extra work that is only required because of the contractor’s default.
  • The legal issues relating to the valuation of variations.
  • The extent of the employer’s freedom to order whatever changes it desires and its power to bring new contractors onto site to undertake extra work.
  • The contractor’s right to additional time to complete the project because of delay caused by extra work.
  • The contract administrator’s role in the process of instructing and valuing variations and the degree of personal responsibility that it may have.
  • Construction Contract Variations is published by Routledge for Informa Law. To order a copy of the book, please click here.

    All royalties for the book will be donated to the Lighthouse Club, the primary charity for the construction industry, which provides wellbeing advice, emotional and legal support and emergency financial assistance to the construction industry workforce and their families in times of hardship and stress.

    For further information about construction contract variations, or construction law in general, please contact either Michael Sergeant or Max Wieliczko.

    Book Reviews

    The book has been extensively reviewed in the legal and industry press. Read quotations from a selection of the reviews below.

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    The Times
    Edward Fennell

    “Mr Sergeant’s book – written with Max Wieliczko and published last month by Routledge for Informa Law – focuses on the way that changes to the scope of work on construction projects are a common cause of dispute. Liability for variations is not only relevant to claims for sums due for extra work, but this is also an important underlying factor in many other construction disputes, such as delay, disruption, defects and project termination. This is the first book to deal exclusively with such variations in construction contracts.”

    Building Magazine
    Tony Bingham

    “I want every adjudicator and wannabe adjudicator to sit an examination and cross-examination on all that is said in this brand new book. It is Construction Contract Variations by two top-notch construction lawyers, Michael Sergeant and Max Wieliczko…And one other thing, if you are the QS, the engineer, the architect on any job, you too need [this book] in your kit bag.”

    International Construction Law Review
    Doug Jones

    “Michael Sergeant and Max Wieliczko have produced a master guide on construction contract variations which cuts right to the heart of the topic. In the preface, the pair openly recognise that this subject has been “unduly ignored” .. and that it is for this reason that they have confronted the difficult task of adding “something new to the current texts”. The authors have certainly done just that with this comprehensive and complete publication which cements its flag atop the subject of construction contract variations. The ultimate product is a work that will no doubt become an essential core text for legal practitioners, decision-makers, academics and students in the field of construction law. The text examines the nuances of construction contract variations across their many and varied manifestations. The depth of analysis is unprecedented and is well supported by a wealth of leading case law from an impressive variety of international jurisdictions… To construction law practitioners, it serves as a complete directory when advising on both the avoidance and resolution of variation disputes.”

    Law Society Gazette
    Simon Rainey, QC

    “The need for a comprehensive and analytical treatment of variations has long been felt. That gap has now been filled by a work of real practical utility, erected on rigorous intellectual underpinning. The authors have approached the subject from first principles and have rationalised a complex and diffuse topic… The book is replete with judicious reference to authority. The analysis is anchored in the forms in everyday use and, throughout, the practical experience of the authors informs the text. The authors are to be congratulated on a clear and well-written book which will become an indispensable classic.”

    JCT News
    Peter Hibberd

    “Construction Contract Variations is a very well researched and splendidly written book. Michael Sergeant and Max Wieliczko and the construction team at Holman Fenwick Willan have a vast amount of experience to draw on and this clearly shows in the text… The text covers all the topics one might expect and more; certainly the authors have not been shy in tackling many difficult questions that arise… Construction Contract Variations is an excellent book and one that should be read by anyone serious about acquiring a proper understanding of variations and their consequences. It would be a very useful addition to practitioners’ reference libraries and over time it will no doubt become extremely well thumbed.”

    Construction Law International (International Bar Association Journal)
    Andrew Tweeddale

    “The book is a thorough treatise on the subject of variations and is a must buy for anyone who wants to develop their knowledge of construction law. It is a book not only for lawyers but is suitable for students studying construction law, engineers, architects, project managers, adjudicators, arbitrators and judges. It is simply an excellent book.”

    Civil Engineering Surveyor (Journal of the Chartered Institution of Civil Engineering Surveyors)
    Hannah Wennell

    “Sergeant and Wieliczko have produced a book which reviews the principal issues of variations afresh, going back to first principles and with detailed consideration rather than collating previous publications on the issue… This book will be an invaluable tool to those operating in the construction industry and no doubt a text that will in time become a practitioner’s manual for understanding a hitherto under-explored area.”

    RIBA Journal
    Jan-Carlos Kucharek

    “This up-to-date text, highly specialised and detailed, was five years in the making, and the authors – both at international law firm Holman Fenwick Willan, address variations on an almost forensic level; with thorough content outlines, case references and overview upfront, to guide users more easily through its core matter.”

    Construction Law Journal
    Crispin Winser

    “Construction Contract Variations is a well researched, well written and welcome addition to the writings on construction law from two very experienced practitioners.”

    Australian Construction Law Bulletin
    Jos Mulcahy

    “A refreshing feature of this book is the practical approach adopted by the authors. The approach is a point of difference from other construction texts which might possibly be explained by the fact that the authors are practising lawyers. Often, following a thoughtful analysis of the relevant authorities, the authors draw on their considerable experience to comment on what actually happens in practice and offer suggestions as to what a contractor or an employer might do when faced with the particular scenario under discussion….

    In the preface, the authors acknowledge that, for a variety of reasons, writing the book was an enormous challenge — the writing commenced in 2009 and the book was first published in 2014. It was well worth the wait and is likely to become an authoritative text on the subject matter of construction contract variations. Indeed, it will be my first point of reference when researching issues related to variations.”

    Society of Construction Law Newsletter
    Julian Bailey

    “Construction Contract Variations is a timely and useful publication. Timely because, as the authors note, there is no current specialist book on the subject of variations. The utility of the book arises from the opportunity which it creates to examine the subject of variations at length, and thus consider in detail the issues which commonly arise when changes to the works are concerned.”

    Tecbar Review (Newsletter of the Technology and Construction Bar Association)
    Peter Land

    “Throughout, the authors have sought to provide practical examples of the numerous circumstances in which questions of variation may arise on a construction project… There are references to examples relating to several standard form contracts at various points in the text… As may be expected, the book includes wide citation of authority and whilst addressing the position under English law, there is also citation of Commonwealth and USA authorities.”

    Australian Construction Law Newsletter
    Dr John Twyford

    “The book is a valuable contribution to our knowledge on this somewhat arcane subject. The discussion of the case law is excellent and the list of cases cited bespeaks careful research on the part of the authors… To conclude, your reviewer notes that it is a book that will be indispensable to practitioners in construction law.”