Civil Engineering Reference
In-Depth Information
progress is actually being delayed or is likely to be delayed, the contractor
must notify the architect in writing.
'The Contractor shall forthwith give written notice'
- As soon as it is reason-
ably apparent to the contractor that the progress of the works is or is likely
to be delayed the contractor must give written notice to the architect. The
notice must specify the cause of delay. Although often overlooked, it is
important for the contractor to identify the precise activity (or activities)
which is (are) delayed together with its (their) relation to the project's critical
path. This notice was held not to be a condition precedent to giving an
extension of time by the architect under JCT 63
436
and the decision probably
applies to JCT 98 also. In any event, under JCT 98 revised wording, the
architect has power to give an extension in the absence of such written
notice; failure by the contractor to give written notice merely means that
the architect does not need to make a decision on extensions until a later
date, i.e. on his review of the completion date not later than the expiry of 12
weeks from the date of practical completion 'whether or not the relevant
event has been specifically notified by the Contractor': clause 25.3.3. It is less
clear whether he is entitled to give an extension of time before practical
completion in the absence of written notice. On balance, that he cannot do so
appears to be the better view. There seems to be no obstacle to making such
a notice a condition precedent if that is what the parties agree in clear
words. In
City Inn Ltd
v.
Shepherd Construction Ltd
437
, the court considered
JCT 80 with amendments. One such amendment stated:
'13.8.5
If the Contractor fails to comply with one or more of the provisions of
Clause 13.8.1, where the Architect has not dispensed with such compli-
ance under Clause 13.8.4, the Contractor shall not be entitled to any
extension of time under Clause 25.3.'
Clause 13.8.1 required the contractor to submit within a specified timescale
written details after receipt of an architect's instruction. It was argued by the
defendants that clause 13.8.5 constituted a penalty. This was rejected by
the court:
'It was perfectly legitimate for the employer to require and the contractor
to accept that, in relation to architect's instructions, the employer should
be forewarned of anticipated consequential delay, and for it to be agreed
that, in the event of the contractor failing to provide such forewarning in
accordance with clause 13.8.1, the risk of loss through delay should shift
from the shoulders of the employer to those of the contractor. Such
provision did not constitute a penalty.'
438
A factor taken into account by the court was that the amount specified
as liquidated damages was genuinely pre-estimated and could not be con-
sidered 'extravagant, penal or oppressive'.
436
London Borough of Merton
v.
Stanley Hugh Leach Ltd
(1985) 32 BLR 51.
437
17 July 2001, unreported; the decision upheld on appeal: [2003] BLR 468.
438
17 July 2001, unreported, at paragraph 8 per Lord MacFadyen.
