What is JCT Clause 2.19 CDP liability? In standard JCT subcontracts, Clause 2.19 limits your design liability for Contractor’s Designed Portion (CDP) works to reasonable skill and care. Main contractors routinely amend this clause to impose an absolute “fitness for purpose” obligation. This guarantees performance outcomes and typically voids your Professional Indemnity insurance cover.
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Main contractors cannot deduct unproven design defect costs or blanket performance damages without serving an operative, arithmetically calculated Pay Less Notice under Section 111. Challenge unlawful contra-charges immediately using my statutory rejection pack.
- Formal Section 111 Statutory Rebuttal Notice (.docx)
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- Section 112 7-Day Notice of Intention to Suspend (.docx)
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1. Technical Authority: Clause 2.19 vs Fitness for Purpose
In standard JCT subcontract terms, design liabilities for Contractor’s Designed Portion (CDP) works are strictly limited:
- The Standard Duty: Clause 2.19 limits your liability to “reasonable skill and care”, identical to the common-law duty owed by a consulting structural or electrical engineer.
- The Bespoke Redline: Commercial teams frequently amend Clause 2.19 by inserting warranties that the completed works will be “fit for purpose” or meet specified client generation outputs under all environmental variables.
- The Pay Less Notice Ambush: If an installed solar array underperforms, the main contractor uses an amended set-off clause to deduct alleged energy losses from your final balance. Verify their paperwork against my invalid Pay Less Notice checklist.
2. Plain English Translation: Why Your PI Policy Disappears
There is a critical difference between reasonable skill and care and fitness for purpose:
- Reasonable Skill and Care: You followed manufacturer guidelines, industry best practices (such as MCS standards), and standard engineering principles. If a component fails or output dips due to unexpected solar irradiation shifts, you are not legally negligent.
- Fitness for Purpose: You guarantee the system will achieve the end result, regardless of external conditions. If it fails, you are strictly liable.
UK Professional Indemnity policies are written solely to defend allegations of professional negligence. When you sign a fitness for purpose clause, you assume a contractual liability that exceeds negligence. Your insurer will decline indemnity, leaving your business to fund rectification and legal defences entirely alone.
If site variations forced layout or containment changes, ensure those instructions are recorded properly using my free Clause 3.14 CVI tool before the 7-day confirmation deadline passes.
3. Loss Aversion: Uncapped Design Exposure & Revenue Loss
Accepting amended Clause 2.19 wording exposes commercial installers to severe financial penalties:
- Uninsured Defect Rectification: Stripping and reinstalling faulty commercial PV arrays runs into tens of thousands of pounds, forcing you to fund repairs from company capital.
- Consequential Loss Deductions: Main contractors will attempt to set off downstream commercial damages (such as lost feed-in tariffs or power purchase revenues). See my breakdown on defending against unlawful set-offs and contra-charges.
- Total Margin Destruction: Uncapped design liabilities turn a high-value commercial project into an open-ended financial drain, creating severe revenue loss.