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See all the news storiesIn our recent article with Insurance Age, Julian Goodall, Head of Liability – Professional Risks, considers the snappily-named clause developed to iron out liability issues in construction.
You can view a copy here, or read on for the full version.
Imagine drinking your relaxing, morning coffee and then suddenly noticing that cracks are starting to appear in your living room wall that you share with your neighbour. You remember that the family next door is having building work carried out on their property, which is the likely cause of the intensifying cracks. So, what happens next?
Damage like this should be straightforward to sort out. If the neighbour’s builder was negligent, their own Public Liability insurance should cover the cost. The problems arise when it’s not possible to prove that your neighbour’s contractor was negligent, and your neighbour has a liability that is not insured - as in the court case Gold v Patman & Fotheringham Ltd 1958.
There’s a gap in cover that can lead to significant costs being borne by an uninsured property/land owner, who may have been unaware that such a liability could arise. JCT 21.2.1 insurance (which provides covers for the nuisance liability that may attach to the property/land owner) was developed to fill that gap.
Who takes out the cover?
The contractor takes out the cover as part of their contract – even though it will protect the property/land owner, not the contractor, in the event of a claim. The name ‘JCT 21.2.1’ refers to the clause in JCT contracts that requires the contractor to take out this insurance for the benefit of the property/land owner (referred to as the “employer” in JCT contracts). It’s sometimes called ‘JCT 6.5.1’ as the numbering of the clause has changed.
The architect or legal advisors involved in the project will usually recommend that this cover is in place. It’s important to explain the reason for the cover to the policyholder beforehand as this will ensure there is no misunderstanding in the event of a claim – especially as these incidents can be quite sensitive, due to it generally being a neighbour who claims. This is particularly important where the property/land owner is a private individual who may not have had previous experience of 21.2.1 Insurance.
How does the cover work?
In our unexpected case above, the wall could most likely be quickly restored. Although it is important to note that this insurance wasn’t designed to cover that kind of cosmetic repair.
But what if the wall has been weakened so much that it leads to a collapse? The resulting claim could easily add up to hundreds of thousands of pounds.
JCT 21.2.1 insurance covers claims that can become very expensive – claims where there has been damage caused by any of the following:
… and the contractor hasn’t been negligent.
The policy follows the language of the JCT conditions and protects the owner of a property against a claim made by a third party (usually a neighbour) who has suffered damage to their property as a result of the contractor’s work.
What isn’t covered?
The intermediary or broker will need to explain to the policyholder that this cover only applies in the (quite narrow) conditions set out in the JCT clause. It won’t cover loss or damage:
Who should call the insurers, and when?
As soon as the property/land owner or contractor becomes aware of an incident that could possibly result in a claim – even if it’s just a knock on the door from a neighbour – they should tell:
TMHCC has been providing JCT 21.2.1 (or similar) insurance for many years and has recently seen a significant increase in demand for the cover, especially in London where homeowners are extending rather than moving. TMHCC has a team of specialist underwriters based in Manchester, headed up by Liability Underwriting Manager, Adrian Farnell. The team boasts experienced claims handlers, and access to construction experts who will assist in the event of a claim and guide the policyholder through the process.
