Loss and/or expense under JCT standard form contracts - Building Contract Claims - page 257

(4) The claim must relate only to direct loss and/or expense not recoverable
under any other provision of the contract.

12.2.10 Contractor's other rights and remedies

Clause 26.6 preserves the contractor's common law and other rights 559 . The
rights set out in clause 26 confer a specific contractual remedy on the
contractor in the circumstances there defined, and subject to the conditions
there imposed. But the contractor's other rights are unaffected, in particular
his right to claim damages for breach of contract 560 .
In other words, the specific contractual right to claim reimbursement for
direct loss and/or expense is additional to any rights or remedies which the
contractor possesses at law, and notably to damages for breach of contract. It
may be that, because of the limitations imposed by the contract machinery,
the contractor will be advised to pursue these independent remedies 561 .
However, see the earlier consideration of those events which are not
breaches of contract 562 .

12.2.11 Clause 34.3

Clause 34 generally provides for what is to happen if 'fossils, antiquities and
other objects of interest or value' are found on site or during excavation. The
contractor is required to use his best endeavours not to disturb the object
and to cease work as far as is necessary and to take all steps necessary to
preserve the object in its position and condition. He is to inform the architect
or the clerk of works. The architect is then required to issue instructions and
the contractor may be required to allow a third party, such as an expert
archaeologist, to examine, excavate and remove the object. All this will
almost undoubtedly involve the contractor in direct loss and/or expense
and clause 34.3.1 provides that this is to be ascertained by the architect or
quantity surveyor without necessity for further application by the

contractor.
The text of clause 34.3 is as follows:

34.3.1 If in the opinion of the Architect compliance with the provisions of clause

34.1 or with an instruction issued under clause 34.2 has involved the
Contractor in direct loss and/or expense for which he would not be

559 The Court of Appeal decision in Lockland Builders Ltd v. John Kim Rickwood (1995) 77 BLR 38,
suggested that where a party's common law rights were not expressly reserved, they could co-exist
with the contractual machinery only where the other party displayed a clear intention not to be bound
by the contract. This view seems to ignore earlier contrary authority: Modern Engineering (Bristol) Ltd
v. Gilbert Ash (Northern) Ltd (1974) 1 BLR 73; Architectural Installation Services Ltd v. James Gibbons
Windows Ltd (1989) 46 BLR 91. The more recent Court of Appeal decision in Strachan & Henshaw Ltd v.
Stein Industrie (UK) Ltd (1998) 87 BLR 52 appears to set the matter straight.
560 London Borough of Merton v. Stanley Hugh Leach Ltd (1985) 32 BLR 51.
561 See Chapter 4.
562 Section 12.2.2.