Belong (Construction) Limited v Seddon Construction Limited

Summary

A contractor won an extension of time in adjudication for delay caused by air sealing works that had to be carried out during the project. The employer said the need for those works arose from the contractor's own failure, under an earlier pre-construction agreement, to open up and test the existing air sealing. It brought a Part 8 claim to challenge the adjudicator's decision.

The contractor said it owed no such obligation under the main building contract, which did not contain it, and that its earlier agreement had been superseded.

His Honour Judge Stephen Davies found for the employer. The obligation in the pre-construction agreement survived the entry into the main contract, and the extension of time machinery, which referred widely to errors, omissions, negligence or defaults, was broad enough to catch the contractor's breach of that obligation. The adjudicator had read it too narrowly.

Background and facts

Belong engaged Seddon to carry out works under a two-stage arrangement. The parties first entered a Pre-Construction Services Agreement in May 2020, and later a JCT Standard Building Contract, with a schedule of amendments, in December 2020.

The pre-construction agreement contained an obligation on the contractor to open up and test the existing air sealing. The contractor had replaced a previous contractor that had gone into insolvency. The contractor did not open up and test the air sealing, and as a result the need for air sealing works was identified only during the main works, instructed by the contract administrator, causing delay.

The contractor claimed an extension of time for that delay. The contract administrator refused it, on the ground that the delay flowed from the contractor's own failure under the pre-construction agreement. An adjudicator disagreed and granted the extension. Belong brought Part 8 proceedings for a final determination.

The issue

Two questions arose. First, whether the contractor's open up and test obligation, which was in the pre-construction agreement but not repeated in the main building contract, survived the entry into the main contract. Second, whether the extension of time machinery in the main contract was wide enough to treat a breach of that earlier obligation as the contractor's own default, so that no extension was due.

The decision

His Honour Judge Stephen Davies found for the employer on both points.

The obligation in the pre-construction agreement did not fall away when the parties entered the main contract. The employer kept its right to complain about the contractor's failure to open up and test the air sealing, even though the main contract did not contain that obligation:

"it has not lost that right as a result of its subsequent entry into the JCT Contract which did not contain that open up and testing obligation."His Honour Judge Stephen Davies, paragraph 8

On the extension of time, the adjudicator had read the relevant clauses too narrowly. They did not confine themselves to a breach of the main contract, but referred widely to errors, omissions, negligence or defaults, which could include a breach of a legal obligation owed to the employer under a separate agreement:

"the adjudicator applied too narrow an interpretation. That is because the clauses do not use the words 'breach of the terms of this Contract'. They refer widely to errors, omissions, negligence or defaults."His Honour Judge Stephen Davies, paragraph 56

On that reading, the delay caused by the contractor's failure under the pre-construction agreement was its own default, and it could not obtain an extension of time for it.

Practical implications

Obligations in a pre-construction services agreement can survive the main contract. On a two-stage procurement, a duty the contractor takes on at the first stage does not necessarily disappear when the parties sign the building contract, even if the building contract does not repeat it. An employer keeps its rights under the earlier agreement, and a contractor cannot assume that entering the main contract wipes the slate clean.

Read the two agreements together. The relationship between a pre-construction agreement and the main contract turns on their terms, and a party should map which obligations carry through, which are superseded, and which stand alongside the building contract. Drafting that makes the position explicit, whether an obligation continues or is discharged on the main contract, avoids exactly this dispute.

Extension of time clauses that refer to defaults reach beyond breach of the main contract. Where the machinery excludes delay caused by the contractor's errors, omissions, negligence or defaults, rather than only its breach of that contract, it can capture a breach of a separate agreement or another legal obligation owed to the employer. A contractor cannot secure an extension for delay that its own earlier default caused.

A Part 8 claim can correct an adjudicator on a point of construction. Where the adjudicator has decided a discrete question of interpretation, and the facts are not in dispute, the employer can bring a Part 8 claim for a final determination rather than live with a temporarily binding decision it says is wrong. Frame the construction question cleanly and keep it to the point the adjudicator decided.

Belong (Construction) Limited v Seddon Construction Limited [2026] EWHC 1275 (TCC), Technology and Construction Court, Manchester, His Honour Judge Stephen Davies sitting as a High Court Judge. Heard 6 May 2026, judgment handed down 28 May 2026.