Time - Scottish Construction Contracts - page 148

or any Section is being or is likely to be delayed, the Contractor should forthwith give
written notice to the Architect of the material circumstances including the cause or
causes of delay and identifying any event which in his opinion is a Relevant Event.
It is important to note that the requirement is to give notice irrespective of whether
the Contractor is seeking an extension and irrespective of whether an event is a Rel-
evant Event, provided it becomes reasonably apparent that progress of the Works is
being or is likely to be delayed. While the Contractor will always be reluctant to advise
the Architect of matters for which they are responsible, for example, defective plan-
ning, poor supervision or inefficient working, the logic of this appears to be that, as
the Architect is only obliged to grant such extension as is fair and reasonable, it is
important that he is aware of all the facts which are relevant in determining what is
fair and reasonable.
It is only in respect of Relevant Events that the contract requires the Contractor
to give, in the notice or as soon as possible thereafter, particulars of the expected
effects including an estimate of the extent of any expected delay beyond the Com-
pletion Date, see clause 2.27.2. Under clause 2.27.3 the Contractor must forthwith
notify the Architect in writing of any material change in the estimated delay or in
any other particulars and supply such further information as the Architect may at any
time reasonably require.
Provisions like this often give rise to arguments about whether proper and timeous
notice by the contractor is a condition precedent to an award of an extension of time.
Architects and employers often argue that that is the case, but the contractual pro-
visions in each case require careful consideration, see London Borough of Merton v.
Stanley Hugh Leach Ltd (1985) and other cases in this area such as Education 4 Ayr-
shire Ltd v .SouthAyrshireCouncil (2009). However, where it is expressly stated in the
contract that the contractor shall not be entitled to an extension of time where they
have failed to give proper notice under the contract, such a provision will be upheld,
see City Inn Limited v. Shepherd Construction (2003).
A contractor should always consider the terms of an extension of time clause very
carefully. Should they give notice of those matters or events that they consider at the
time are likely to be non-critical? Should they refrain from giving notice where they
believethattheyhaveanadequateloatintermsoftimetoallowthemtocomplete
within the required period? Much will depend on the particular wording of the exten-
sion of time clause, but it is important to remember that things can change over the
course of a contract through no fault of the contractor. In most, if not all, cases it
will be prudent to give notice. A failure to give written notice of delay may, in certain
circumstances, constitute a breach of contract.
It has been suggested that if the architect, because of a failure on the part of the
contractor to give notice, has been unable to avoid or reduce a delay to completion,
the contractor should not be awarded an extension greater than that which they would
have received had they given notice, see London Borough of Merton .
The SBC provides that no extension is to be granted unless the Contractor has
constantly used their best endeavours to prevent delay, however caused, and they
have done all that may reasonably be required to the satisfaction of the Architect
to proceed with the Works. Unfortunately there is little guidance on what is meant
by 'best endeavours' and 'all that may reasonably be required' in this context. In other