Legal Advice for Cocineros Construction Ltd on Witherspoon Contract Disputes

Assignment Brief

Report – Providing advice to Cocineros Construction Ltd on the legal position of various disputes with Witherspoon

Sample Answer

Legal Advisory Report

To: Directors, Cocineros Construction Ltd
Subject: Legal Advice on Disputes with Witherspoon

1. Introduction

This report aims to provide clear, practical legal advice to Cocineros Construction Ltd concerning ongoing disputes with its client, Witherspoon, arising from a construction contract. The report outlines the legal principles applicable to each issue, assesses Cocineros’ legal position, and suggests potential routes for resolution, including litigation, negotiation, or alternative dispute resolution (ADR).

2. Background and Context

Cocineros Construction Ltd (hereafter "Cocineros") entered into a standard JCT Design and Build Contract 2016 with Witherspoon for the construction of a mid-sized commercial property. Various issues have arisen during the project, leading to disputes over delay, defective works, payment claims, and alleged contract breaches. Cocineros now seeks legal clarification and strategic advice on these matters.

3. Analysis of Disputes

3.1 Dispute Over Delay and Extension of Time

Issue: Witherspoon claims Cocineros is responsible for project delays and seeks liquidated damages.

Legal Position:

Under clause 2.28 of the JCT D&B 2016 contract, Cocineros is entitled to request an Extension of Time (EOT) for Relevant Events, such as variations, exceptionally adverse weather, or delays caused by the employer. If evidence exists that delays were caused by Witherspoon’s late instructions or design changes, Cocineros may be entitled to an EOT and can avoid liability for liquidated damages.

Recommendation: Cocineros should submit detailed delay analysis and written records of all instructions and delays. If EOT entitlement is valid and well-documented, Cocineros has a strong defence against liquidated damages.

3.2 Dispute Over Defective Work Allegations

Issue: Witherspoon alleges poor workmanship in electrical and plumbing systems and demands rectification or cost deductions.

Legal Position:

Clause 2.35 imposes a duty on Cocineros to execute works with "reasonable skill and care." If defects are proven, Cocineros may be required to remedy them or bear costs. However, the defects must be specifically identified and assessed.

Recommendation:

Request a detailed snagging list or independent inspection report. If defects are minor or result from Witherspoon`s design input, Cocineros may challenge liability. Consider offering to rectify genuine defects to maintain commercial relations, but reject unfounded claims.

3.3 Payment Dispute and Withheld Certificates

Issue: Witherspoon has failed to issue payment certificates and is withholding payment for completed work.

Legal Position:
Under clauses 4.7–4.9 of the JCT D&B 2016, Witherspoon (or its Contract Administrator) must issue Interim Payment Certificates. Failure to issue a valid Pay Less Notice may entitle Cocineros to full payment under the Housing Grants, Construction and Regeneration Act 1996 (as amended).

Recommendation:
If Cocineros submitted a valid payment application and Witherspoon did not respond with a Pay Less Notice within the required timeframe (typically 5 days before the final date for payment), Cocineros may claim full payment and pursue adjudication under the Act. This is a strong legal position.

3.4 Termination Threat and Repudiatory Breach

Issue: Witherspoon has threatened to terminate the contract based on perceived poor performance.

Legal Position:
Termination for default is governed by clause 8 of the JCT D&B 2016. To lawfully terminate, Witherspoon must follow strict procedures, including issuing a Default Notice and giving Cocineros an opportunity to rectify the alleged breach. Wrongful termination can amount to a repudiatory breach, allowing Cocineros to claim damages and loss of profit.

Recommendation:
Monitor Witherspoon’s actions carefully. If they act outside the contract’s termination process, Cocineros can treat the contract as wrongfully terminated and pursue a damages claim. Document all correspondence and continue performing obligations to avoid counter-claims of breach.

Continued...