MUCH OBLIGED
S
HOW MIGHT AN EMPLOYER’S EXPRESSED OBLIGATION TO CO-OPERATE WITH THE CONTRACTOR OPERATE IN A PUBLIC WORKS CONTRACT?
ub-clause 4.1.1 of an Employer
What is an obligation to co-operate?
Design Public Works Contract
Many academic papers that examine co-operation clauses refer to them as collaboration clauses
(PWC) states that:
and deem them to be an expressed obligation to act in good faith. In Costain Ltd v Tarmac Holdings
“The Employer [subject to restraints as a public
Ltd [2017] EWHC 319 (TCC), Coulson J., in determining the meaning of the NEC3 collaboration
authority] and the Contractor shall support
clause 10.1, which uses the phrase “work together in a spirit of mutual trust and co-operation”,
reciprocal co-operation for the Contract purposes,
drew a parallel between “mutual trust and co-operation” and obligations of “good faith”.
including
co-operation
with
and
between
Contractors Personnel and Employers Personnel”.
What is the scope of an employer’s expressed obligation to act in good faith?
Due to the impact Covid-19 has had on
The scope and application of a good faith provision will depend on the clause wording and rules of
construction projects, the Office of Government
interpretation. The rules of interpretation were summarised in Costain Ltd v Tarmac Holdings Ltd,
Procurement (OGP) has asked in its Covid-19
where Justice Coulson affirmed that the starting point for the interpretation of a contract provision
guidance notes that the parties make every effort
is the language the parties have chosen. Keating on NEC3 regarded clause 10.1 of the NEC3 (see
to co-operate with each other by making specific
above) as a widely drafted clause, providing a “portmanteau general obligation” or an overarching
reference to the above clause. This guidance from
obligation to act in good faith.
the OGP is welcome, but what does an obligation
Enforceable rights may be created by overarching good faith obligations, which may impose
to co-operate with the contractor mean?
obligations in addition to the proper performance of the parties’ other contractual duties.
This article aims to answer this question by
However, in Mason (a firm) v WD King Ltd [2003] EWHC 3124 (TCC), the courts seemed to take the
defining what an obligation to co-operate means
view that there was only a remote possibility that overarching obligations would carry more weight
and what the scope of a co-operation clause might
than other more specifically drafted provisions. Sub-clause 4.1.1 of the PWC is widely drafted like
be. The impact an obligation to co-operate may
clause 10.1 of NEC3, and could be regarded as being an overarching obligation to act in good faith.
have on an employer’s other rights and obligations
This clause could impose obligations in addition to the employer’s other obligations, especially when
in a PWC is also considered.
the employer and their representative are exercising their decision-making functions.
FEATURE Peter McCarthy Principal Consultant, McCarthy Dispute Resolution Ltd
28
SURVEYORS JOURNAL Volume 10, Issue 3, Autumn 2020
