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1Clear out junk files and repair common Windows errors2Fix the driver behind crashes, sound loss and screen glitches3Repair Windows errors before they cause bigger problemsThe UK Supreme Court unanimously ruled for Hexagon Housing Association in Providence Building Services Limited v Hexagon Housing Association Limited [2026] UKSC 1: a contractor could not use a second late payment to terminate under clause 8.9.4 of the JCT Design and Build Contract 2016 when the earlier default had been cured within 28 days and the right to terminate for that first default had never accrued. The ruling turns on the wording of this contract clause, not a blanket rule for every JCT contract or repeated payment failure.
What did the Supreme Court decide?
On 15 January 2026, the Supreme Court allowed Hexagon’s appeal against the Court of Appeal’s decision in [2024] EWCA Civ 962. Lord Burrows gave the unanimous judgment, agreed to by Lord Reed, Lord Briggs, Lord Stephens and Lord Richards. The Court held Providence could not terminate under clause 8.9.4 on the basis of Hexagon’s May 2023 late payment because the earlier December 2022 default had been cured before its contractual 28-day continuation period expired.
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The key distinction was between a repeated default and an accrued right to terminate. In the Court’s interpretation, repetition alone was not enough: clause 8.9.4 referred to the further notice described in clause 8.9.3, and Providence had never acquired the right to serve that earlier notice in relation to the December payment.
How the dispute arose
Hexagon was the employer and Providence the contractor on a project to construct buildings in Purley, London. Their contract, entered into in February 2019, incorporated the JCT Design and Build Contract 2016 with amendments. The original contract sum was approximately £7.2 million.
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The December 2022 payment
Hexagon missed a payment deadline. Providence served a specified-default notice the next day, but Hexagon paid 14 days after the due date, before the 28-day period in clause 8.9.3 expired. Providence therefore did not acquire a clause 8.9.3 termination right for that default.
The May 2023 payment and termination notice
Hexagon missed another payment in May 2023. Providence served a termination notice under clause 8.9.4, arguing that the specified default had been repeated. Providence also asserted separate common-law termination rights; those assertions should not be confused with the clause 8.9.4 issue decided by the Supreme Court.
Rank #2
The first-instance judge, Adrian Williamson KC, found for Hexagon. The Court of Appeal reversed that outcome, but the Supreme Court restored Hexagon’s win.
Why clauses 8.9.3 and 8.9.4 mattered
Clause 8.9.3 provided a route for the contractor to terminate if a specified default continued for 28 days after notice, subject to serving a further notice within the clause’s stated period. Clause 8.9.4 addressed a repeated specified default where the contractor did not give the further notice referred to in clause 8.9.3.
Rank #3
The issue was whether clause 8.9.4 could be used when the right to give the earlier clause 8.9.3 notice had never arisen. The Supreme Court said it could not on these facts. Hexagon had paid the December amount before the 28-day period ran out, so the first default did not persist long enough for Providence to acquire the clause 8.9.3 right that clause 8.9.4 referenced.
How the Court assessed the competing readings
| Question | Reading that supported termination | Supreme Court’s approach |
|---|---|---|
| What does clause 8.9.4’s reference to clause 8.9.3 do? | Two specified defaults could be enough, even if the first was cured before the contractor’s clause 8.9.3 right accrued. | The reference to the further notice in clause 8.9.3 must have effect. A repeated default did not suffice where the earlier right had never accrued. |
| Did the December default last long enough? | The first missed payment could count as the earlier default even though it was later paid. | It was cured within 28 days, so the contractual continuation condition was not met. |
| Should the employer’s termination provision control the interpretation? | The parties’ termination rights should be symmetrical. | The clauses used different wording and included other differences; symmetry could not be assumed. |
The Court interpreted the contract objectively and in context. It noted that treating two payments each one day late as sufficient to trigger termination would produce an extreme result. For a standard-form contract, the Court applied the established contextual approach, taking account of the form’s industry-wide use and the objective intentions associated with adopting it.
As Lord Burrows put it, “The correct interpretation of a contract is a question of law.”
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.What the ruling means for construction contracts
Check the wording actually incorporated
The case concerned the JCT Design and Build Contract 2016 as amended by the parties. Bespoke amendments can change the analysis, so assess the executed contract and any amendments rather than relying on the standard-form label alone.
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Distinguish a repeat breach from a termination trigger
Under the clause as interpreted in this case, a second late payment did not itself establish a clause 8.9.4 right when the first payment had been made within the 28-day period and the clause 8.9.3 right had not accrued. The judgment does not establish that a second late payment can never justify termination under differently worded terms.
Do not infer matching rights from the other party’s clause
The Court rejected the argument that the employer’s termination provision required a symmetrical interpretation. The relevant provisions differed in wording and timing, so the contractor’s rights had to be read from the language governing those rights.
Keep the decision’s scope narrow
The ruling resolves the interpretation of clause 8.9 in the contract before the Court. It does not decide every possible termination clause, every amendment to a JCT form, or Providence’s separately asserted common-law grounds.
Check the later JCT edition
The Supreme Court said the disputed wording remained unchanged in the JCT Design and Build Contract 2024 edition. Even so, confirm the actual contract text and amendments governing the project before applying the ruling.
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Sources and case documents
- UK Supreme Court case page, judgment and press summary. The Court’s press summary is an aid to understanding, not part of its reasons.
- Devonshires’ account of the case, which says the firm represented Hexagon and names Jonathan Lewis KC and Nicholas Kaplan as counsel instructed.
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