Clear Intent + Communication: The Make-or-Break Elements in Construction Law

In construction law, “intent” refers to the objectively demonstrated willingness of parties to be legally bound by their agreements. Courts determine intent not by examining hidden motives but by analyzing words and conduct. The “intent” transforms routine interactions into enforceable obligations or liabilities, and communication & conduct are the tools which convey intent, explicit or implicit. Disputes, delays, and cost overruns often trace their roots not to technical failures, but to fundamental misunderstandings or undocumented agreements. For example, a contractor receiving an email stating "proceed with site prep; contract to follow" might reasonably interpret this as authorization to mobilize equipment. Even if the owner later cancels, courts often deem the contractor’s mobilization as evidence of a binding agreement for preliminary work, entitling the contractor to payment under the “quantum meruit” principle. This scenario illustrates how seemingly casual communications create unintended contractual bonds.

Ambiguous Intent: A Shortcut to Disputes

Specific communication involves precise language, and explicit documentation reflects clear intent. When intent is ambiguously communicated, construction projects become fertile ground for disputes. Seemingly casual communications can inadvertently create binding contractual obligations. Legal standards for interpreting ambiguous clauses prioritize the plain meaning of terms but allow for extrinsic evidence when terms remain unclear or have multiple reasonable interpretations. The doctrine of contra proferentem is frequently applied, directing courts to construe unclear provisions against the drafter of the contract to encourage precision and clarity. However, the existence of clauses attempting to negate contra proferentem reveals a proactive, yet challenging, legal strategy by sophisticated parties to control interpretive risk. Some contracts explicitly state that the general rule of construing ambiguities against the drafter shall not apply, allowing both parties to present evidence of actual intent in the event of ambiguity.

Real-World Applications and Consequences

Here are some key examples demonstrating how intent can steer legal outcomes in construction law.

1. Letters of Intent

Letters of Intent (LOI) are frequently used to allow early commencement of work before a formal contract is executed, but they often demonstrate the tension between intent and communication. An LOI marked "non-binding" but requesting "immediate mobilization" creates inherent ambiguity. The landmark case of RTS Flexible Systems Ltd v Molkerei Alois Müller [2010] UKSC 14 & 38 famously illustrated this, where the Court ruled that the contractor’s commencement of work under such an LOI, despite a "subject to contract" disclaimer, formed a binding contract. The owner’s conduct (allowing work to proceed) overrode the written qualifiers.

A more recent case, CLS Civil Engineering Ltd v WJG Evans and Sons [2024] EWHC 194 (TCC), further underscores the complexities. In this instance, an unsigned LOI with an initial liability cap of £150,000 was issued. The contractor commenced work, and despite the absence of a formal JCT contract, work continued, and the owner repeatedly agreed to increase the maximum liability under the LOI. A dispute arose when the contractor's final valuation exceeded the revised cap. The court ultimately ruled that the parties' relationship was governed by the LOI and its revisions, upholding a revised liability cap. This case demonstrates that even explicit liability caps in LOIs can be implicitly revised through ongoing conduct and subsequent communications. It underscores that LOIs, even with explicit terms, require continuous vigilance and formal documentation of any changes, as conduct can create new, binding obligations, emphasizing the supremacy of demonstrated intent over initial written disclaimers if not carefully managed.

1. Pacing Delays

Unrecorded intent frequently escalates disputes related to project delays. When an employer’s design delay stalls critical path activities, a contractor might strategically slow some tasks as mitigation to cost overrun. However, if this decision is not formally documented and communicated prospectively, the employer may accuse the contractor of concurrent delays. For a contractor to receive time-related costs, the delay must typically be compensable, meaning non-concurrent (caused solely by the owner or parties for whom the owner is responsible). Crucially, at common law, there is no automatic right to delay or disruption costs. A contractor’s email stating, "slowing masonry works by not deploying additional subcontractors due to delayed MEP design approvals; this task is not currently driving the completion date" suffices, preserving the contractor’s right to delay by highlighting reactive intent. Failure to issue such notices often forfeits claims under contract.

1. Acceleration Claims

Constructive acceleration occurs when an owner requires a contractor to comply with the original completion deadline despite the contractor having encountered an excusable delay or a demand to complete before the agreed contract completion date. The essential elements of a constructive acceleration claim are an excusable delay/early completion, an acceleration order (an explicit intent), and incurred additional costs to accelerate work. Sometimes the demands of recovering delays also highlight the peril of implied intent. When an owner denies a time extension but insists on the original deadline, contractors often face pressure to accelerate silently; however, the contractor’s communication and intent are vital in such situations. In Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd [1999] 66 ConLR 119, the Court denied acceleration costs because the contractor failed to segregate overtime expenses from routine labour. In contrast, a contractor who responds to a deadline demand with: "accelerating per your instruction despite EOT denial; costs logged separately and will be communicated monthly," creates contemporaneous evidence linking costs to the owner’s conduct.

When an employer insists on timely completion despite concurrent delays, acceleration claims become even more complex and compelling. In Ascon Contracting Ltd v Alfred McAlpine, the Court positions that an implied direction to accelerate, even if never formally issued, can support a claim for acceleration costs so long as those costs are identified. The judicial recognition of "implicit" acceleration orders significantly broadens the scope of owner liability, placing a heightened burden on owners to formally address excusable delays and show a clear intent. On the other hand, it requires the contractors to meticulously document such intents to maintain the record, even where explicit directives are missing.

Conclusion: Building Trust Through Precision

In construction law, intent is far from an abstract concept; it is a daily operational reality. Every email, meeting minute, and site instruction shapes legal liabilities and influences project outcomes. The difference between profit and loss often hinges on whether parties communicate their intent with surgical specificity. The cumulative evidence presented points to a fundamental shift in construction law from a reactive, intent-driven paradigm, where communication and documentation are no longer mere administrative tasks but strategic imperatives for legal certainty and project success.

Projects thrive when stakeholders treat communication as a risk-control tool, transforming subjective intentions into objective, enforceable records. contractual intent is not solely defined by the initial agreement but is continuously shaped and refined by the ongoing, documented communications throughout the project lifecycle.

References  

1.     Burr A, Delay and Disruption in Construction Contracts (5th edn, Sweet & Maxwell 2016)

2.     Beale H (ed), Chitty on Contracts (34th edn, Sweet & Maxwell 2022)

3.     Cobrief, ‘Intent of the Parties: Overview, Definition, and Example’ https://cobrief.app accessed on 23 July 2025

4.     Construction Law Made Easy, ‘Letter of Intent’ https://constructionlawmadeeasy.com accessed on 23 July 2025

5.     Deloitte, ‘The Art of Intentional Communication’ https://deloitte.com accessed on 24 July 2025

6.     Fenwick Elliott, ‘Good Intentions, But Unintended Consequences?’ https://fenwickelliott.com accessed on 23 July 2025

7.     Go Legal, ‘Letters of Intent in Construction – A Comprehensive Guide’ https://go-legal.co.uk accessed on 21 July 2025

8.     Institute of Entrepreneurship Development, ‘Communication Plan: A Practical Example’ https://ied.edu accessed on 24 July 2025

9.     Magaziner Law, ‘The Role of Clear Communication in Construction Contracts’ https://gavinmagazinerlaw.com accessed on 22 July 2025

10.  KPPB LAW, ‘The Role of Communication in Mitigating Construction Disputes’ https://kppblaw.com accessed on 22 July 2025

11.  Pollack Peacebuilding Systems, ‘Construction Communication: Importance & Strategies to Improve’ https://pollackpeacebuilding.com accessed on 22 July 2025

12.  Versoria, ‘Intent vs Impact: Alignment for Effective Communication’ https://versoriaonline.com accessed on 24 July 2025