Civil Engineering Reference
In-Depth Information
contractor could bring a common law claim against the employer for breach
of contract and simply recover all his loss and/or expense as damages.
Government action: clause 25.4.9
The action must be taken by the government after the base date. The 'Base
Date' is that date written into the Appendix. In the case of JCT 80 before its
amendment of 11 July 1987, the reference was to the 'Date of Tender', mean-
ing '10 days before the date fixed for receipt of tenders by the employer'
(clauses 38.6.1 and 39.7 in their original form), which did not always in
practice provide a firm date if the date for receipt of tenders was amended.
This provision might, for example, be relied upon wherever the British
Government exercises any statutory power in the sense described in the
clause, e.g. under the Defence of the Realm Regulations. The real signifi-
cance of this is that it is no longer to be covered by
force majeure,
and this
relevant event prevents the contract being brought to an end by frustration.
It is simply dealt with by an extension of time. A prolonged stoppage of
work for this reason would not, therefore, be grounds for the contractor to
determine his own employment under clause 28.
Inability to obtain labour and goods: clause 25.4.10
Under JCT 98 the clause is mandatory and not merely an optional ground
for extension. Moreover, the date at which any shortage is to be unforesee-
able is the 'Base Date'. There are two sub-clauses. One deals with labour, the
other with materials. In order to qualify as a relevant event, not only must
the shortage be unforeseeable, the inability to obtain labour or materials
must be for reasons which are beyond the contractor's control. Although
there will be certain fairly rare instances when the contractor will not be able
to obtain certain materials no matter what measures he takes or what price
he is prepared to pay, he will always be able to obtain labour. Sometimes he
will have to pay a grossly inflated price or he may be obliged to bus them in
to site from some distance away, but he will always be able to secure labour.
On that basis, this clause would never bite and it would be redundant.
However, a contract must be construed so as not to defeat the parties' inten-
tions
479
. The parties clearly intended the inability to obtain labour to be
grounds for an extension of time. In order to make sense of this particular
event it is necessary to make some implication regarding the availability of
labour ormaterials at priceswhich could reasonablybe assumedby theparties
at the base date. This is a peculiarly difficult event to consider in practice.
Local authority or statutory undertaker's work: clause 25.4.11
These provisions cover delay caused by the carrying out by a local authority
or statutory undertaker of work 'in pursuance of its statutory obligations' in
relation to the works, or its failure to do so.
479
Hydrocarbons Great Britain
v.
Cammel Laird Shipbuilders
(1991) 53 BLR 84.
