A discovery of priceless Roman artefacts, comprising of the first “flat-packed furniture” and five oak coffins, are set to delay the development of 21 Holborn Viaduct and the tenants who are due to take occupation. The archaeological dig was led by the Museum of London Archaeology and has described these finds as “exceptionally important” Roman artefacts as they have rarely been discovered this far within the reaches of the ancient empire.

Archaeological finds are not uncommon on construction sites as some of the best hidden histories are unearthed by their excavations. Whilst the discovery will be exciting to those with an interest in antiquity, it can feel like a Gaulish ambush to others and serves as a timely reminder of the risks faced by parties on construction sites.

In areas where the potential for the presence of antiquities could be a risk, it is important to have a contingency plan to resolve potential project delays and prepare to mitigate for such delays before construction begins. Upon discovery of an archaeological artefact, the contractor needs to notify the employer of the find. As with 21 Holborn Viaduct, an archaeologist should attend the site to ascertain the importance of the excavation and, where necessary, adequately preserve any findings. This also enables the contractor to ascertain the full extent of the archaeological artefacts, and to understand if works can continue. Where the works are likely to be impacted, the implications will depend on who bears the risk under the contract. If this is not expressly provided for, the common law position is that the contractor will bear the risk.

Antiquities are dealt with under clause 3.15 of the JCT Design and Build Contract 2016 and requires the contractor to protect the object and cease work. This can either be a relevant event potentially giving rise to an entitlement to additional time pursuant to clause 2.26.4, or a relevant matter giving rise to additional time and costs under clause 4.21.3.

Under the NEC form, this is covered by the compensation event under clause 60.1. Again, parties will need to have assessed at the outset the risks of archaeological finds for their specific site and the allocation of this risk under the contract.

It is understood that the updated JCT 2024 suite when published will extend the relevant event dealing with antiquities to deal with unexploded bombs, contamination and asbestos and will also update how the exercise of “statutory powers” is dealt with. Whilst the updated wording will not stop further Roman (or other) incursions on construction sites, it will be interesting to see how the new suite allocates the risks and how these are received by the parties to construction contracts.