Civil Engineering Reference
In-Depth Information
material effect on progress leading to the contractor incurring loss and
expense.
Direct loss and/or expense
The loss and/or expense which is the subject of the contractor's claim must
be
direct
and not consequential. The listed matter or matters relied upon
must be the cause of the loss and/or expense and the phrase may be
equated with the common law right to damages. (This matter is fully
discussed in Chapters 5 and 7.)
Payment under other contract provisions
The reference to 'would not be reimbursed by a payment under any other
provision of this Contract' is to prevent double payment, for instance where
increased costs of labour and materials during a period of delay to comple-
tion are already being recovered under the fluctuations provisions of the
contract. In relation to claims arising from clause 26.2.7 (see below), obvi-
ously some care must be taken to distinguish between those costs which are
covered by the quantity surveyor's valuation under clause 13 and those for
which reimbursement may be obtained under this clause
522
. There is, how-
ever, another aspect to this phrase which is often overlooked. Contractors
often claim on a 'this or that' basis, hopeful that what they miss under one
clause they will recover under the other. This strategy may be successful,
but the use of 'would not be' rather than 'has not been' before 'reimbursed'
is significant. The effect is that if the contractor is entitled to be reimbursed
under any other clause, he is not entitled to be reimbursed under clause 26
whether or not he has actually received reimbursement under any other
clause. It seems that if he is entitled to recover under clause 13, he must
persevere in his attempts for he cannot recover as loss and/or expense what
amounts to a shortfall in clause 13.
Material effect on regular progress
The basis of the contractor's entitlement to claim under clause 26 is that 'the
regular progress of the Works or of any part thereof has been or is likely to
be materially affected by any one or more' of the 11 matters listed in clause
26.2. In other words, it is the effect of the stated matter upon the regular
progress of the Works, i.e. any delay to or disruption of the contract
progress.
It is useful to consider the meaning which has been attributed to these
important words by various commentators. Some suggest that the effect is
to confine the contractor's entitlement to the financial results of
delay
to
522
See the proviso to clause 13.5 and the full discussion of variations under JCT standard form
contracts in Chapter 13.
