Delay is common in construction projects and the source of many construction disputes. Helen Coxon, a chartered legal executive with Womble Bond Dickinson, looks at the subject of claiming an extension of time under a JCT Contract.

Delay is where the expected completion date is missed or an incident occurs that postpones the planned start date without prolonging the completion date. It is an issue because it increases costs for both the employer and contractor, and potentially for anyone in the supply chain. The main causes of delay include contractor management and performance problems, changes to the scope or the design of the works, materials being delayed, or employer interference.

If a delay arises which is not caused by the contractor, the contractor is entitled to claim an extension of time (EoT) as a Relevant Event under a JCT Contract. Under a JCT Design and Build Contract, we often see the following Relevant Events amended or deleted by employers to limit the contractor’s entitlement to claim an EoT:

  1. Exceptionally adverse weather conditions
  2. An amendment to a statutory power after the Base Date by the UK government or any local/public authority which directly affects the works
  3. Delay in respect of permissions or approvals of any statutory body

An employer will often amend point 2 so that the contractor is not entitled to claim an EoT if the change to the statutory power was reasonably foreseeable. This could have a significant impact in light of the Grenfell disaster as any change to Building Regulations following the Base Date could be deemed to be foreseeable and the contractor, and any subcontractors, may not be entitled to an EoT in this scenario.

Ordinarily, a subcontract will mirror the terms of the main building contract or contain a deemed awareness provision so that any employer amendments or deletions will be passed down to the supply chain.

Important tips

  • Review the main building contract – have any amendments been made which could limit your ability to claim an EoT?
  • Review the contract mechanism for notifying any delays
  • Ensure you have a good record-keeping system – this will assist should a delay claim be issued

FIS members requiring assistance with this topic can contact Philippa Jones through the FIS Legal Helpline.


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