Civil Engineering Reference
In-Depth Information
It used to be said that it was not possible to say that the contractor was failing to proceed
regularly and diligently if ever there was anyone at all on the site, even though the pace of
the work was snail-like. Everyone knew that it was just plain silly to take that attitude, but
there was great reluctance on the part of architects to take any action on the basis of fail-
ure to proceed regularly and diligently out of fear of getting it wrong. SBC, IC, ICD clause
2.4 and DB clause 2.3 use this phrase to describe the contractor's duty to progress. Because
breach of this duty is a ground for termination under SBC, DB, IC, ICD, MW and MWD,
it is important to be able to identify it. Even the courts have been doubtful about its precise
meaning, and one court concluded its consideration of the topic with the not-very-helpful
words,'AllIcansayisthatIremainsomewhatuncertainastotheconceptenshrinedinthese
not issuing a default notice to a contractor specifying that it was not proceeding regularly
and diligently. The Court of Appeal turned down the architects' appeal and laid down some
useful guidelines:
AlthoughthecontractormustproceedbothregularlyanddiligentlywiththeWorks,and
although each word imports into that obligation certain discrete concepts which would
not otherwise inform it, there is a measure of overlap between them and it is thus un-
helpful to seek to define two quite separate and distinct obligations.
What particularly is supplied by the word 'regularly' is not least a requirement to
attend for work on a regular daily basis with sufficient in the way of men, materials
andplanttohavethephysicalcapacitytoprogresstheworksubstantiallyinaccordance
with the contractual obligations.
What in particular the word 'diligently' contributes to the concept is the need to ap-
ply that physical capacity industriously and efficiently towards the same end.
Taken together the obligation upon the contractor is essentially to proceed continu-
ously, industriously and efficiently with appropriate physical resources so as to pro-
gress the works steadily towards completion substantially in accordance with the con-
tractual requirements as to time, sequence and quality of work.
Beyond that I think it impossible to give useful guidance. These are after all plain
English words and in reality the failure of which [the clause] speaks is, like the ele-
phant, far easier to recognise than to describe.
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