Loss and/or expense under JCT standard form contracts - Building Contract Claims - page 251

Possession refers to the whole of the site and, in the absence of
sectional possession, the employer is not entitled to give possession in
parcels 545 . It has been suggested that provided 'the contractor has sufficient
possession, in all the circumstances, to enable him to perform, the employer
will not be in breach of contract' 546 . This proposition, while it may suggest a
way of arriving at the measure of damages, must be treated with caution.
His right to possession is an express term of the contract (see clause 23.1)
and in any event there is at common law an implied term in any construc-
tion contract that the employer will give possession of the site to the
contractor in time to enable him to carry out and complete the work by
the contractual date 547 .In London Borough of Hounslow v. Twickenham Garden
Developments Ltd 548 , Megarry J said, 'The contract necessarily requires the
building owner to give the contractor such possession, occupation or use as
is necessary to enable him to perform the contract'.
Accordingly, subject to the right to defer possession for a limited time
under clause 23.1.2 if that clause is stated in the contract appendix to apply,
any failure by the employer to give possession on the due date is a breach of
contract, entitling the contractor to bring a claim for damages at common
law in respect of any loss that he suffers as a consequence 549 . It can also be
addressed in clause 26 as a matter under clause 26.2.11. In an Australian
case it was clearly held that, where there was failure to give possession of
the building site to a contractor, this constituted a breach of contract, and on
the facts the contractor was there to be entitled to treat the contract as
repudiated 550 . Under JCT 98, clauses 25.4.19 and 26.2.11 may be able to be
used to forestall such action.
Although the clause refers to instructions issued under clause 23.2, such
instructions have been held to arise as a matter of fact 551 .
Whether a postponement instruction gives rise to any loss and/or ex-
pense at all, or to what extent it does so, must be the subject of careful
investigation by the architect or, if so instructed, the quantity surveyor. For
example, if the instruction is issued relatively early, so that the contractor
can use his best endeavours to prevent any delay, if it is of short duration
and if, most importantly, it applies to non-critical activities, the effect upon
regular progress may be negligible.
545 Whittal Builders v. Chester-Le-Street District Council (1987) 40 BLR 82.
546 Stephen Furst and Vivian Ramsey, Keating on Building Contracts , 7th edition, 2001, Sweet &
Maxwell, p. 711.
547 Freeman & Son v. Hensler (1900) 64 JP 260.
548 (1970) 7 BLR 81.
549 London Borough of Hounslow v. Twickenham Garden Developments Ltd (1970) 7 BLR 81. See Chapter 4
for claims at common law.
550 Carr v. Berriman Pty Ltd (1953) 27 ALJR 273.
551 See M. Harrison & Co (Leeds) Ltd v. Leeds City Council (1980) 14 BLR 118, where an instruction
expressed as a variation order was held to be in fact an order for postponement and Holland Hannen &
Cubitts (Northern) v. Welsh Health Technical Services Organisation (1981) 18 BLR 80, where a notice
which was apparently intended to notify the contractor of defective work was held to instruct
postponement.