The Employer’s Obligations - Building Contract - page 136

that he should complete the work by a specified date. The only access to the site was
from a road, and as the soil of the council's land and of the adjoining road was soft,
the contract provided that the plaintiff lay a temporary sleeper roadway from the road
to the site for access, and subsequently provide a permanent pathway. The plaintiff
began work but was forced to abandon it because of a threatened injunction from an
adjoining owner, who claimed that the road was his property. The third party's claims
were held to be unfounded. The plaintiff then resumed and completed the works. He
claimed damages against the council in respect of the delay caused by the third party's
action.
Held: The plaintiff 's claim must fail. There was no implied warranty by the council against
wrongful interference by third parties with the free access to the site.
The position is different where the employer has it in his power to have the situation rectified,
if necessary by legal action.
The Rapid Building Group Ltd v. Ealing Family Housing
Association Ltd
COURT OF APPEAL
(1985) 1 Con LR 1
The plaintiffs contracted with the defendants on JCT 63 terms to construct 101 dwell-
ings in five blocks at Stoneville Road, Chiswick, London W4. Clause 21 of the contract
and the Appendix entry provided that possession of the site should be given to the
contractor on 23 June 1980. At the time when, by clause 21, the defendants promised
to give the contractor possession, they were unable to do so because the north-east
corner of the site was occupied by squatters. Eviction proceedings were taken by the
defendants and the squatters were evicted, but it was at least 19 days before the site was
cleared of squatters so as to enable the contractors to occupy the whole of the site.
Held: The defendants were in breach of clause 21 and the breach caused appreciable delay.
STEPHENSON LJ: The learned judge found that the defendants were in breach of clause 21; he
further found that the breach caused appreciable delay on the part of the plaintiffs. In my
judgment, both those findings must stand. The first was plainly right; [clause 21 provides that
on the date stated in the appendix] possession 'shall be given' to the contractor, and it seems
to me unarguably that there was a clear breach of that term by the failure of the defendants,
for whatever reason, to remove these squatters until an appreciable time after they had prom-
ised to give the plaintiffs possession of the site . . . I would hold with the judge that there was
a clear breach of the express term and that there is nothing inconsistent in that finding
with . . . Porter v. Tottenham Urban District Council (1915), a case in which, in rather similar
circumstances, but where there was no clause 21, this court held that there was no implied
warranty that the site should be completely clear; nor is it in any way inconsistent with the
case of LRE Engineering Services Ltd v. Otto Simon Carves Ltd (1981), where Robert Goff J, as
he then was, had to construe the contractual words 'affording access' - again something that
is quite irrelevant to the construction of clause 21 in this case.