Claims under GC/Works/1 (1998) - Building Contract Claims - page 365

their discretion is not to be fettered. Inevitably, this ground will
operate to fetter their discretion to some extent and this proviso is
unlikely to change that, because of the nature of discretion.
provided that the employer has failed to supply or do something by a
date agreed with the contractor or within any reasonable period in a
notice given by the contractor to the employer or to the PM. This is a very
restrictive proviso which precludes the contractor from making any
claim unless he satisfies one of these conditions, before the alleged delay.
(4) Advice, other than required by the CDM Regulations, given by the
planning supervisor.
A further stipulation is that one or more of these matters must unavoidably
result in the regular progress of the works being disrupted or prolonged.
Strictly, this means that there can have been no other outcome no matter
what action the contractor took. It is thought that 'unavoidably' should be
given the commercial meaning of unavoidably in the context of the ordinary
nature of construction operations and not unavoidable in a strict sense. For
the contractor to be successful in contending that regular progress has been
disrupted or prolonged, he must first be prepared to establish that he was,
as a matter of fact, making regular progress 621 .
The contractor must satisfy two conditions before he is entitled to
payment:
(1) He must give notice to the PM immediately he becomes aware that
regular progress of any part of the works has been or is likely to be
disrupted or prolonged. 'Immediately' in that context means that the
contractor must act with all reasonable speed 622 . Obviously, a commer-
cial interpretation must be given to 'immediately', but it is probably a
matter of days rather than weeks. It is likely that the courts will apply
notice provisions of this kind strictly 623 . Contrast this with words such
as 'as soon thereafter as is practicable', when a broad interpretation can
be expected 624 . The only difficulty in this instance is establishing that the
contractor has become 'aware' on a particular date. It is important that
the contractor does give notice immediately from the purely practical
standpoint that the PM may want to give instructions so as to reduce
any possible claim. If the notice is given only after the event, the PM will
be powerless to influence matters. In addition, clause 25 provides for the
contractor to keep such records as may be necessary for the QS, PM or
621 Some guidance on the contractor's obligations in working regularly and diligently has been given
in West Faulkner Associates v. London Borough of Newham (1995) 11 Cost LJ 157. See the discussion in
Chapter 12, in section 12.2.4, 'Material effect on regular progress'.
622 Hydraulic Engineering Co Ltd v. McHaffie, Goslet & Co (1878) 4 QBD 670 CA.
623 There is little judicial authority in the English courts other than Hersent Offshore SA and Amster-
damse Ballast Beton-en-Waterbour BV v. Burmah Oil Tankers Ltd (1979) 10 BLR 1, but there are two
Commonwealth cases on the topic: Jennings Construction v. Birt [1987] 8 NSWLR 18 and Wormald
Engineering Pty Ltd v. Resources Conservation Co International [1992] 8 BCL 158. See also the discussion
in Chapter 12, in section 12.2.4, 'Timing of application' and 'Architect's assumed state of knowledge'.
624 Tersons v. Stevenage Development Corporation (1963) 5 BLR 54. In Hersent Offshore v. Burmah Oil
(1979), 10 BLR 1, 4 months was held to be outside this period envisaged by those words.