Civil Engineering Reference
In-Depth Information
ascertainment of direct loss and/or expense under clause 26 is essentially a
finding-out of facts
after
the event.
It is for the architect or quantity surveyor (not the contractor) to ascertain
the amount of loss and/or expense. It is impracticable to require the archi-
tect to provide the contractor with a breakdown of extensions of time
between causes of delay, since this is of no relevance to the effect of an
extension, as stated previously. If, as so often happens, there are a number
of overlapping causes of delay, to apportion the overall extension between
those various causes will often be impossible
555
. Clause 26.3 apparently
merely requires the architect to specify the relevant events he has taken
into account without apportioning. The clue is in the words 'If and to the
extent it is
necessary for ascertainment
'. It is difficult to think of any situation
where that will apply.
Methodist Homes Housing Association Ltd
v.
Messrs
Scott & McIntosh
is relevant
556
. The judgment was very short. The judge said
that the action was founded on a claim by the contractors for loss and/or
expense due to disruption under clause 26 of the JCT 80 form. He upheld the
essential argument of the claimants that a certificate of extension of time
under clause 25 had no bearing on a claim based on disruption under clause
26. He went on to consider clause 26.3, which is very similar to clause 26.3 of
JCT 98, in these terms:
'It is true that clause 26.3 provides that in certain circumstances the
architect shall state in writing to the contractor what extension of time
has been made under clause 25 but it is instructive that this provision
only operates ''if and to the extent that it is necessary for ascertainment
under clause 26.1 of loss and/or expense''.
In the end, [Counsel] for the pursuers, was, I think constrained to
accept that there was no essential link between clause 25 and clause 26,
but he nonetheless sought to persuade me that if reference was made to
the notification certificates themselves and to the claim document (all of
which were lodged in processes and incorporated in the pleadings) it
could be seen that the extensions of time granted and the claim pro-
ceeded on exactly the same ''Architect's Instructions''. Having looked at
these documents with [Counsel], however, I regret that I am quite unable
to take that view. And even if they did, I am not sure that I fully
understand the significance bearing in mind the distinct purposes of
Clause 25 and Clause 26 respectively.'
12.2.7 Nominated sub-contract claims
Clause 4.38 of JCT Nominated Sub-Contract Form (NSC/C) is a provision
corresponding to clause 26 of
the main contract
form enabling the
555
H. Fairweather & Co Ltd
v.
London Borough of Wandsworth
(1987) 39 BLR 106.
556
2 May 1997, unreported.
