The risks associated with incorrectly terminating a construction contract are such that record numbers tuned in to view Simon Tolson’s vital update for the construction industry in his JCT Povey Lecture, on Wednesday, 22 November 2023.
In his presentation entitled “The Terminator”, Simon Tolson, senior partner, Fenwick Elliott LLP, examined some of the key issues surrounding termination, including describing what factors must be considered when seeking termination, how to navigate the process correctly – with careful thinking and preparation, and what happens when things go wrong.
In the live broadcast webinar, Simon’s lecture included the following main points:
- Considering alternatives – parties should carefully consider if they really want the contractual relationship to come to an end and explore all possible alternatives. Allowing time to think through the issues carefully and avoid rash decision making.
- The confusion around what may constitute a repudiatory breach of contract and the importance of determining repudiatory breaches correctly.
- The importance of preparation and groundwork once the right to terminate has been established, including other contractual factors to consider, and keeping complete and accurate records.
- Where things commonly go wrong – including errors of procedure.
- The importance of seeking legal advice.
Simon’s presentation also discussed what the modern thinking in English law and the courts is in respect of termination. He cited many cases, including recent decisions in the courts, that highlighted the consequences if termination is handled incorrectly.
Simon Tolson, said:“My message is really to ensure that you know what’s required before you exercise the right to terminate. It’s also important to understand what happens if you do something wrongfully [that] can end up terminating your contract with adverse consequences.
“But, of course, termination is not all bad. Clearly it is sometimes something that is very necessary, it’s a very powerful self-help remedy.”
Following the presentation, Simon took part in an interactive audience Q&A, hosted by JCT chair, Karen Kirkham.
Watch On Demand
The full presentation and Q&A, which recorded JCT’s highest registration and viewership for a Povey Lecture to date, is available to view at https://corporate.jctltd.co.uk/povey-lecture-2023.
Visit the web page for more information, including downloadable presentation slides and lecture notes.
About the JCT Povey Lecture
The JCT Povey Lecture is an annual event at which an eminent person is invited to give their thoughts on significant matters that are relevant to the construction and property industry. The purpose of the lecture is to stimulate thought and encourage ways of continuing to improve the quality and value of construction output.
The event was inaugurated in 2003 to acknowledge and pay tribute to Philip Povey, who served JCT for fifty years.
The JCT Povey Lecture is delivered as part of JCT’s ‘digital first’ approach, which encompasses a range of digital-only and hybrid activities. It provides a flexible and interactive way for construction professionals across the industry, and regardless of location, to access high quality content from industry experts.
