The recent decision in John Sisk and Son Ltd v Capital & Centric (Rose) Ltd [2025] EWHC 594 (TCC) provides valuable insight into how the courts interpret risk allocation for existing structures under a JCT Design and Build Contract 2016 (JCT D&B 2016), particularly when complex bespoke amendments are in play.
The Technology and Construction Court (TCC) was asked to determine who bore the risk of delay and cost increases arising from the condition of existing structures on site. The court’s finding—that the employer bore that risk—underscores the importance of clarity in contractual drafting, especially in projects involving refurbishment or redevelopment of existing buildings.
Background
The dispute arose from a redevelopment project in Manchester. Capital & Centric (Rose) Ltd (“C&C”), the employer, engaged John Sisk and Son Ltd (“Sisk”) as design and build contractor under a JCT D&B 2016 contract. The project involved the refurbishment and extension of a number of historic structures.
During the course of the works, it became apparent that the condition of the existing buildings was significantly worse than anticipated. In particular, structural elements intended to support new loads were found to be unsuitable, resulting in delays and additional costs to redesign and implement alternative solutions.
Sisk claimed entitlement to an extension of time and additional payment, arguing that the state of the existing structures was not within its contractual risk. C&C disagreed, asserting that the contractor had assumed full design responsibility and had accepted the condition of the structures as part of the site risk.
The Contractual Framework
The parties’ contract was based on the JCT Design and Build Contract 2016, but—as is often the case—contained a number of bespoke amendments, particularly in relation to the contractor’s responsibilities for site conditions and existing structures.
Key clauses in dispute included:
- Provisions regarding the contractor’s duty to carry out design and build works to achieve certain employer’s requirements;
- Clauses addressing site risk, including existing structures;
- Bespoke terms purporting to “clarify” the contractor’s obligations in relation to the suitability of existing buildings.
C&C argued that these amendments transferred the risk of the existing structures’ suitability to the contractor. Sisk maintained that it was only responsible for working with what it found, not for remedying unknown or undisclosed defects in the existing buildings.
The TCC’s Findings
The TCC sided with the contractor, Sisk, concluding that the employer bore the risk of issues arising from the condition of the existing structures. The court’s reasoning was rooted in three key observations:
- Interpretation of Bespoke Amendments – The court approached the bespoke amendments through the lens of commercial common sense and coherence within the broader JCT framework. It found that, although some language appeared to widen the contractor’s obligations, it did not go so far as to transfer full risk for latent defects or inadequacies in the existing structures.
- No Clear Transfer of Risk – The court emphasised that transferring responsibility for unknown risks—particularly those outside a contractor’s control—requires clear and express language. In this case, there was no unambiguous clause stating that the contractor accepted the risk of the structures being unfit for the proposed works.
- Design Obligation Does Not Imply Risk Assumption – Sisk’s responsibility to design the works did not equate to an assumption that the existing structures would be capable of supporting them. The judge noted that design obligations are often contingent on the existing conditions being as expected or reasonably ascertainable.
Key Takeaways for the Industry
This decision has important practical implications for employers, contractors, and legal advisors:
- Bespoke amendments must be precise: When altering standard form contracts like the JCT D&B 2016, parties must be unambiguous if they intend to shift significant risk—especially relating to latent conditions or existing structures.
- Due diligence and disclosure are critical: Employers undertaking refurbishment or adaptive reuse projects should ensure comprehensive surveys and make adequate disclosures. Failure to do so may leave them exposed to cost and time claims.
- Contractors remain entitled to rely on reasonable assumptions: Unless clearly stated otherwise, courts will not presume that a contractor has accepted the risk of discovering structural inadequacies during the works.
Conclusion
John Sisk v Capital & Centric (Rose) affirms the courts’ reluctance to infer sweeping risk transfers from general design-and-build language, particularly in contracts involving complex existing conditions. For practitioners, it serves as a reminder that the allocation of risk must be deliberate, express, and consistent across the contract documents. Otherwise, the default position under the JCT D&B 2016 will likely prevail, and the employer may find itself holding the risk it thought it had passed on.