Civil Engineering Reference
In-Depth Information
A claim under clause 11(6) by contrast will not normally arise in consequence of any breach
of duty on the part of the architect. The architect has power under clause 11(1) to issue
instructions requiring variation and under clause 11(2) 'variation' is described in very wide
terms apt to cover any desired departure from the work as originally conceived. The purpose
of clause 11(4) is to provide remuneration for such additional or varied work calculated in
accordance with the principles which govern pricing of the work originally contracted to be
carried out and the purpose of clause 11(6) is to supplement that remuneration by reimburs-
ing the contractor for consequential direct loss or expense. However, a claim for damages may
arise if, for instance, following application by the contractor the architect fails to ascertain or
to instruct the quantity surveyor to ascertain the amount of the direct loss or expense suffered.
There is nothing in the contract which excludes such a claim for damages.
Under JCT terms there is no necessary connection between the grant of an extension of time
and a claim for direct loss and/or expense. A claim for direct loss and/or expense need not
either be preceded by or accompanied by the grant of an extension of time.
H. Fairweather & Co Ltd v. London Borough of Wandsworth
QUEEN'S BENCH DIVISION
(1987) 39 BLR 106
Disputes arose between the parties to a JCT 63 contract, largely concerned with the test
adopted by the arbitrator for allocating extensions of time.
Held:
Under JCT terms the grant of an extension of time is not a condition precedent to the
contractor's right to reimbursement of direct loss and/or expense.
JUDGE JAMES FOX-ANDREWS QC: The grounds relied upon by Fairweather are:
The arbitrator erred in law in his award in relation to 'the strikes' in holding . . . that, as
between the various heads under clause 23 pursuant to which an extension of time may be
granted, the extension should be granted in respect of the dominant reason, whereas he
should have held that where the reasons for delay correspond with more than one head,
the extension may be granted under either or both heads. The applicants will rely upon the
decision of His Honour Judge Edgar Fay QC (sitting as a deputy High Court judge) in
Henry Boot Construction Limited
v.
Central Lancashire New Town Development Corporation
(1980).
In his third consideration of Fairweather's claim for extension of time the architect granted
an extension of 81 weeks under condition 23(d) by reason of strikes and combination of
workmen. The
quantum
of extension was not challenged but Fairweather contended before
the arbitrator that eighteen of those 81 should be reallocated under condition 23(e) or (f).
The reasoning behind the contention was that only if there was such a reallocation could
Fairweather ever recover direct loss and expense under condition 11(6) in respect of those
weeks reallocated to condition 23(e) or condition 24(1)(a) in respect of those weeks reallo-
cated to condition 23(f).
