The WW Gear case, conditions precedent and construction contracts

Abstract

Purpose

This paper aims to look at the recent case of WW Gear Construction Ltd v. McGee Group Ltd (henceforth “WW Gear”) and the complex legal concept of a condition precedent in construction contracts.

Design/methodology/approach

The paper looks at the origin of a condition precedent and explores recent cases in which a condition precedent was involved as an issue. The wording of the relevant contract documents used in WW Gear is examined and the attitude adopted by the judiciary when dealing with an alleged condition precedent is explored in depth.

Findings

From the judgment handed down by the court it is clear that provided such a clause in a contract is correctly framed and the words used indicate a clear intention of the parties which is reasonable, then the English Courts will find that a condition precedent is enforceable.

Research limitations/implications

When dealing with a condition precedent, the judges will interpret any condition precedent strictly but not so strictly that a minor drafting error makes the condition precedent unenforceable. The exact boundaries of strictness cannot be settled by WW Gear but will have to await further development of case law through future litigation. The implications of WW Gear for building surveyors and the wider construction industry are that considerable care must be taken in the administration of construction contracts where conditions precedent are present. The adjudicator was clearly incorrect in his finding that the relevant sub‐clauses were meaningless and could be safely ignored by the parties.

Originality/value

Whilst the legal concept of a condition precedent has featured in several modern construction law cases there is a paucity of literature dealing with the implications for building surveyors and construction professionals. This paper explores the importance of this often ignored legal concept not as abstract jurisprudence but in a succinct and practical way allowing practitioners to understand more fully the implications of a condition precedent on projects in which they are involved.

Citation

Donohoe, S. (2011), "The WW Gear case, conditions precedent and construction contracts", Structural Survey, Vol. 29 No. 2, pp. 99-105. https://doi.org/10.1108/02630801111132786