Clarification Schedules – beware the Sisks: clarification schedule torpedoes site condition clause
Last month’s decision of His Honour Judge Stephen Davies in John Sisk and Son Limited v Capital & Centric (Rose) Limited [2025] EWHC 594 (TCC) is a stark illustration of the mischief that can be done by an unscrutinised clarifications schedule in a building contract.
Capital & Centric (“the Employer”) contracted with John Sisk (“Sisk”) for construction works during the course of which difficulties occurred with the existing structures on the site. A dispute arose over who had responsibility for the risk in relation to the existing structures, including the site’s ability to support and/or facilitate the proposed works.
The JCT D&B Contract 2016 had extensive bespoke amendments, including very comprehensive clauses 2.42.1, 2.42.2 and 2.42.3 which “made clear that Sisk was contractually responsible for all risks in relation to the existing site, including the risk in relation to the condition of the existing structures and the risk of any of the information provided by C&C being wrong”.
Nevertheless, contrary to what the Employer had no doubt firmly expected, those clauses did not put a stop to the dispute. Clause 2.42.4 provided that “This clause 2.42 shall be subject to item 2 of the Clarifications”. Thus, the employer’s nemesis, the clarifications schedule, came into play. The judge found that the following section of a document called “Clarifications” was, therefore, relevant:
| Sisk Clarification | Comments / Risk Owner | |
| 2 | Existing Structures Risk including ability to support / facilitate proposed works | The Employer is to insure the Existing buildings/ works. Employer also to obtain warranty from Arup with regard to the suitability of the proposed works. Employer Risk |
The judge rejected that this wording was to be understood as meaning that the Employer had the contractual risk of a failure to provide the required insurance and/or the required Arup warranty. Rather, his view was that the Employer was the owner of the risk of the suitability of the existing structures, including their suitability to support and facilitate the contract works. He did not consider that item 2 would “deprive those clauses [2.42.1 to 2.42.3] of all effect” but that it provided a “limited” (though significant) carve out from those clauses, namely the existing structure risk. He went on to review the other Contract Documents and found that they were consistent with that conclusion.
As such, the Employer learned a hard lesson on behalf of all employers and developers… No matter how carefully and comprehensively a risk allocation clause might be drafted, it can be torpedoed by the introduction of a clarifications schedule. Granted, the clarifications schedule was expressly referenced in clause 2.42.4, but it is very much doubted that the effect of that reference was what the Employer had intended, and it is conceivable that the judge would have reached the same conclusion even absent such explicit reference to it. As such, real thought should be given to whether a clarification schedule is included and referenced, and if it is, the wording of such documents should be given close review.
The judge also made the noteworthy observation that the bespoke provisions’ references to clarifications schedules in this case “well illustrate how the negotiation and agreement of such issues can lead to a final contractual position of some complexity” which presents quite a challenge in ascertaining how risks are allocated when they come to fruition.
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