Loss and/or expense under JCT standard form contracts - Building Contract Claims - page 236

equivalent provisions of JCT 63. It was to meet the difficulties created by the
need for successive applications under JCT 63 that clause 26.1 has been
redrafted,
'to require applications to be made ''as soon as it has become, or should
reasonably have become apparent to him [the contractor] that the regular
progress of the works or any part thereof has been or is likely to be affected''
by specified events . . . and to state ''that he has incurred or is likely to incur
direct loss and/or expense'' . . . ' (italics in judgment) 514
It is equally plain that a so-called 'general' or 'protective' notice is not
sufficient under clause 26.1. Specific written applications must be made in
respect of each event. Further, the issue of an 'automatic' standard letter
application every time one of the events listed occurs does not satisfy the
requirements of clause 26.1 unless it clearly refers to the appropriate
grounds. Where such an application does not satisfy clause 26.1, submitting
it is a fruitless exercise.
The contractor's written application under clause 26.1 is related to the
degree to which one or more of the matters listed in clause 26.2 has affected
or is likely to affect regular progress, and the contractor must have genuine
and sustainable grounds for believing this to be the case. Although the point
unaccountably seems to be ignored in the construction industry, the making
of an application under clause 26 which is not genuine and which the
contractor knows not to be genuine is nothing short of attempted fraud.
Timing of application
Clause 26.1.1 requires that the contractor's written application should 'be
made as soon as it has become, or should reasonably have become, apparent
to him that regular progress of the Works or any part thereof has been or
was likely to be' materially affected. In the case of deferred possession, it
appears that an application should be made as soon as notification is
received from the employer that possession of the site is to be deferred.
The application must, therefore, be made at the earliest reasonable time and
certainly before regular progress of the works is actually affected, unless
there are good reasons why the contractor could not foresee that this would
be the case. Although clause 26.1 allows for an application to be made at
the time of or after the event, the intention is clearly that the architect should
be kept informed at the earliest possible time of all matters likely to affect
the progress of the work and likely to result in a claim for loss and/or
expense.
514 F. G. Minter Ltd v. Welsh Health Technical Services Organisation (1980) 13 BLR 7 at 20 per Stephenson
LJ.
515 Hersent Offshore SA and Amsterdamse Ballast Beton-en-Waterbouw BV v. Burmah Oil Tankers Ltd
(1979) 10 BLR 1; Diploma Constructions Pty Ltd v. Rhodgkin Pty Ltd [1995] 11 BCL 242; Wormald
Engineering Pty Ltd v. Resource Conservation Co International [1992] 8 BCL 158; Opat Decorating Service
(Aust) Pty v. Hansen Yuncken (SA) Pty [1995] BCL vol 11, 360; City Inn Ltd v. Shepherd Construction Ltd ,
17 July 2001, unreported (upheld on appeal).