JCT embeds collaboration and good faith in 2024 suite

The 2024 JCT contract includes a new article 3, which creates express and enhanced duties for good faith and collaboration between contracting parties.

This article states: 'The parties shall work with each other and with other project team members in a cooperative and collaborative manner, in good faith and in a spirit of trust and respect. To that end, each shall support collaborative behaviour and address behaviour [that] is not collaborative.'

Part of the reason for this change may be that parties contracting under JCT 2016 have rarely opted to incorporate the good faith supplemental provision. To our knowledge it has not yet been interpreted by the courts either.

There are likely numerous reasons for parties' apparent hesitation, but one is undoubtedly a sense of uncertainty as to how the provision might operate. Faced with that uncertainty, the simple solution has been to avoid it by not opting in to the supplemental clause.

By elevating these obligations from the supplemental provisions to the main body of the 2024 contract, JCT aims for the duties to act in good faith and promote collaboration to become business as usual rather than an optional extra.

This approach reflects increasing recognition across the construction industry of the benefits of collaboration – emphasised both in government initiatives such as the Construction Playbook, which identified it as key to effective contracting, and in Trust and productivity: The private sector construction playbook.

The Court of Appeal confirmed the 'very obvious point […] that the core meaning of an obligation of good faith is an obligation to act honestly', while also noting that 'commercially unacceptable' but not dishonest conduct might similarly fall foul of a good faith obligation, depending on the context. This approach has been followed in subsequent cases, including Matière SAS v ABM Precast Solutions Ltd [2025] EWHC 1434 (TCC).

In a construction context, much of the English case law on good faith has arisen in relation to the NEC requirement for parties to act 'in a spirit of mutual trust and cooperation', found in clause 10 of both NEC3 and NEC4. 

Although the NEC provision doesn't use the phrase 'good faith', the courts have taken the wording to be analogous.

We know from Van Oord UK Ltd v Dragados UK Ltd [2021] CSIH 50, even though this is a Scottish case, that this duty is 'not merely an avowal of aspiration' but reflects a broader principle that arises in Scots law, and that the good faith provision is a counterpart to other, substantive obligations.

Thus, the court noted that if the employer failed to act 'in a spirit of mutual trust and cooperation' then it would be precluded from seeking to reduce the sums payable to the contractor using the compensation event mechanism provided elsewhere in the NEC contract.

That said, earlier cases such as Costain Ltd v Tarmac Holdings Ltd [2017] EWHC 319 (TCC) made clear that a duty of good faith does not go so far as to require a party to put aside its own self-interest, and will not prevent a party from insisting on its freely negotiated entitlements.

For example, the existence of a good faith duty will not by itself preclude a party from using its rights to terminate a contract, or to insist on strict compliance with a notice regime, provided that it was not acting in bad faith in so doing.

In practice, and in the context of a construction contract, it is safe to assume that parties must act honestly, openly, and with integrity, and also in a way that supports the overall success of the project – although they are not required to forgo benefits to which they are entitled.

As the article is framed broadly, it is easy to see how this clause might be engaged in relation to the behaviour of somebody other than the parties themselves such as a subcontractor or consultant.

What is clear is that parties cannot merely avoid uncooperative conduct; to comply with article 3 they must actively cooperate, for instance, by engaging with one another and seeking to maintain a positive working relationship.

Furthermore, if a party observes conduct that is not collaborative, there is a duty to intervene and address the offending behaviour. The JCT have not provided any particular guidance as to what actions might be taken, and any such actions will necessarily depend on the specific circumstances.  

A common-sense interpretation is likely to require that any concerns are raised either informally or formally, and that remedial or disciplinary action be taken if necessary, which could conceivably extend to removing an uncooperative individual from a project.

While its precise requirements will always depend on context, the clear message is that a spirit of collaboration, trust and respect should guide behaviour throughout a project. 

Parties should engage with one another constructively, address issues openly and early and if that fails, require appropriate conduct by all participants.

Embracing these principles might not ensure perfect project execution, but certainly ought to boost the odds of successful outcomes for all parties.