NEC3 ECC: Can a construction lawyer be recovered under SCC item 14?

Contractor has increased his commercial team by adding a construction lawyer. Initially the recovery was attempted as a subcontractor but we agree that they are not necessary to provide the works. The Contractor is now looking to recover under people not directly employed, SCC 14 - is this correct?

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A lot of lawyers would like to know the answer to this one !

Arguably ‘Yes’ provided certain criteria are met. For instance :

  • as they are not normally based within the Working Areas, they would have to be working within the WAs when doing the work;
  • they must not be doing “preparation for and conduct of an adjudication or proceedings of the tribunal” as otherwise it will be a Disallowed Cost under the last bullet of clause 11.2 (25). This presents a problem as I am often brought in by a Contractor to provide an independent view on a issue to avoid adjudication or tribunal. However, if my view is that the Contractor has a case, so it is presented to the PM / Employer and they do not then agree with it, it can be slippery slope down to adjudication. When does constructive advice change into preparation for adjudication ?