Providence Building Services Ltd v Hexagon Housing Association Ltd

[2026] UKSC 1

We have discussed this case previously in Dispatch, Issues 290, 291 and 304. Providence had brought a Part 8 claim seeking a declaration against Hexagon as to the proper construction of clause 8.9 of the 2016 JCT Design and Build Contract between the parties. In the Court of Appeal, Stuart-Smith LJ said that the dispute raised in an issue about the proper construction of the contract that was “simpler to state than … resolve: can the Contractor terminate its employment under clause 8.9.4 of the JCT Form in a case where a right to give the further notice referred to in clause 8.9.3 has never previously accrued?”. In the TCC, the judge had found in favour of the employer, Hexagon, holding that the answer to this question was “no”; the CA disagreed.  The Supreme Court agreed with the original judge.

Lord Burrows decided that the words, “If the Contractor for any reason does not give the further notice referred to in clause 8.9.3, but (whether previously repeated or not)”, made clear that clause 8.9.3 was a gateway to clause 8.9.4, and it was only if the employer failed to cure an earlier specified default within 28 days that the Contractor could terminate for a repetition of the specified default. Providence had not therefore been entitled to terminate its employment under clause 8.9.4.

Lord Burrows also explained that the CA had, in interpreting clause 8.9 of the Contract, misplaced its reliance on clause 8.4 of the Contract, which addressed the employer’s right to terminate. There was no reason why the right to terminate should be symmetrical as between Employer and Contractor, especially when clause 8.4 and clause 8.9 included different time periods and used different wording.

Lord Burrows, who gave the leading judgment with which the other Supreme Court judges all agreed, said that when interpreting an industry-wide standard form, it should usually be interpreted consistently for all contracting parties using that form and, subject to bespoke amendments, that interpretation is unlikely to be contradicted by the objective intentions of the particular contracting parties. While the guidance notes to a contract may be admissible evidence as an aid to interpretation, the judge did not derive any assistance from the relevant JCT guide. Similarly, Lord Burrows did not derive any assistance from previous versions of the JCT form or past judicial decisions on those previous forms, though they were both admissible as background context. Lord Burrows referred with approval to the commentary in Chitty on Contracts, 36^th ed (2025), para 16-061, which summarises the position as follows:

"In the case of a contract which is intended for standard use throughout a particular industry or market, the court is more likely to focus its attention on the background generally known to participants in the industry or the market and not on the background known to, or the understandings of, the individual parties to the particular transaction."

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