Civil Engineering Reference
In-Depth Information
a revised Completion Date due to the acceptance of a Variation or Acceleration
Quotation, the Contractor is to provide, within 14 days, an amendment or revision
to the programme to take account of that, see clause 2.9.2.
There are consequences in the form of liquidated and ascertained damages if the
Contractor fails to meet the Completion Date. These are considered in Sections 6.8
and 6.9 below. Under clause 2.28.6.1, the Contractor is subject to the overriding obli-
gation to constantly use its best endeavours to prevent delay in the progress of the
Works, or any Section, and to prevent the completion of the Works or Section being
delayed or further delayed. Under clause 2.28.6.2, in the event of any delay, the Con-
tractoristodoallthatmayreasonablyberequiredtothesatisfactionoftheArchitect
to proceed with the Works or Section.
These references give rise to the question of what is required by an obligation to use
best endeavours or to do all that is reasonably required. here is some case law which
givesguidanceonthis.
In the English case of
CPC Group Limited
v.
Qatari Diar Real Estate Investment
Company
(2010), one of the issues was the interpretation of 'all reasonable but com-
mercially prudent endeavours' and what this required. It was found in this case that
this did not mean a party had to act to its commercial detriment. That was perhaps
clearer in this case than it might otherwise have been because of the inclusion of the
reference to 'commercially prudent'.
In
Phillips Petroleum Co UK Ltd
v.
Enron Europe Ltd
(1997), it was said that use of
reasonable endeavours to reach agreement on matters fundamental to a contract did
still entitle a party to have regard to its own interests.
The Scottish Courts have agreed with that approach, stating in
R&DConstruction
Group Limited
v.
Hallam Land Management Limited
(2009)thatinusing'allreasonable
endeavourstoagreetheamountofthepurchaseprice',apartywasentitledtotakeinto
account their own commercial interests.
In
Yewbelle Ltd
v
. London Green Developments Ltd
(2007), it was said, in relation to
an 'all reasonable endeavours' obligation, that it was correct to consider whether there
was anything else Yewbelle could reasonably have done with any real or significant
prospect of overcoming the problem.
In
Mactaggart & Mickel Homes Limited
v.
CharlesHunterandMrsSandraHunter
(2010), the question which arose was whether Mactaggart & Mickel had used 'reason-
able endeavours' to obtain planning permission for a site. There the judge said:
In my opinion the phrase 'reasonable endeavours' in its context imposes obligations
on MML which are not as onerous as the phrase 'all reasonable endeavours'
…
which required the court to consider whether there were reasonable steps which
could have been taken but were not. The phrase is also less burdensome on the
obligant than the phrase 'best endeavours', which appears to me
…
to require
something more than 'all reasonable endeavours'.
He considered that a reasonable endeavours obligation did not require the obligant
to disregard its own commercial interests. The test to be applied was what would a
reasonable and prudent Board of Directors, acting properly in the interests of their
company and applying their minds to its contractual obligations, have done.
