Loss and/or expense under JCT standard form contracts - Building Contract Claims - page 231

finance may be made available or savings may be made where it is still
possible to do so).' 511
In addition there is provision in clause 13A which allows the contractor's
estimate of the amount of loss and/or expense he will incur in carrying out
an instruction to be accepted and in clause 13.4.1.2 to similar effect in
connection with the contractor's price statement. These clauses are
considered in Chapter 13.
12.2.2 Clause 26
Clause 26 is long and complex but the contractor's entitlement to recovery
under the clause depends on the correct operation of its machinery. It is
therefore vitally important that all those concerned - contractors, architects
and quantity surveyors - should fully understand its intention and the way
in which it works.
The greater part of clause 26 deals with the contractor's and nominated
sub-contractor's rights to financial reimbursement for events which are
breaches of contract by, or which are within the control of, the employer
himself, others for whom he is responsible, or the architect acting on the
employer's behalf.
It is extremely important to note that a number of the matters to which the
clause refers are not breaches of contract by the employer or those for whom
he is responsible. For instance, an instruction to open up work for inspection
or requiring a variation is one which the architect is specifically empowered
to issue under the contract, and its issue, therefore, clearly cannot be a
breach of contract which would otherwise entitle the contractor to recover
damages. It follows that clause 26 contains the sole right of the contractor to
compensation for such matters, and if the contractor loses his right to
compensation under the clause, for instance by failing to make an applica-
tion at the proper time, the preservation of his common law rights under
clause 26.6 will avail him nothing. This consideration applies to the matters
described in clauses 26.2.2, 26.2.5 and 26.2.7 and to deferment of possession
of the site where clause 23.1.2 applies.
The clause is divided into six sub-clauses:
26.1 sets out the machinery. It sets out the rights and obligations of the
contractor if he wishes to obtain payment and the rights and obliga-
tions of the architect and/or quantity surveyor in response thereto.
26.2 sets out the grounds that may entitle a contractor to payment.
26.3 sets out the architect's obligation, in certain circumstances, to notify the
contractor of the grounds upon which he has granted extensions of
time. This is a highly misleading sub-clause 512 .
511 5 BLR 123 commenting on J. Crosby & Sons Ltd v. Portland Urban District Council (1967).
512 This is considered in section 12.2.6.