Prolongation and Disruption Claims - Building Contract - page 313

carry out the same exercise as that required under clause 25.3.3. Clause 25.3.3.1 requires the
architect to fix a completion date which is -
. . . fair and reasonable having regard to any of the Relevant Events, whether upon reviewing
a previous decision or otherwise and whether or not the Relevant Event has been specifically
notified by the contractor under clause 25.2.1.1 [my emphasis].
The JCT conditions do not make the issue of a certificate under clause 24.1 dependent upon
the grant of any extension of time (or refusal to do so) under clause 25 so in law there is no
connection even though in practice the same ground will be covered. Once the contractor has
given notice under clause 25.2.1.1 the architect is obliged to consider the circumstances (and
may also have been obliged to do so if he became aware of them earlier) even if no specific
application had been made as provided for by clause 25.4.6.
68. For present purposes, the more important question, in my view, is the date by which
the architect or consultant is obliged under the contract with the client to provide the infor-
mation. In my judgment, as I have indicated, that date cannot be the date by which it turns
out that the contractor actually needed the information. A target is not to be determined ex
post facto . That is to confuse whether the employer can prove any loss resulting from the breach
of duty with the duty itself. Obviously if clause 5.4 is fulfilled then a duty based upon its fulfil-
ment will necessarily be discharged to the extent the contractor has made no claim against the
employer so the employer should not be liable to the contractor and thus should have no
complaint against the consultant responsible. The duty is primarily contractual and, although
its breach may also give rise to an action in negligence, the employer's architect or consultant
has to provide the information by the date when it is expected. That date will depend on a
number of factors. The terms of the construction contract will be one of them but in the pre-
contract period the duty will have to be framed by reference to what is likely to happen. Once
the contract is made, the discharge of the duty may then be refined by the production of
programmes by the contractor or other yardsticks by which the performance of the architect
or consultant may be measured, all the more so if the dates are agreed (as envisaged by the
bills and specification in this contract). If the programmes are not met then the consultant
may no longer be obliged to provide the information by the programmed date, although, as
I have said, it would be misleading to equate the consultant's obligations with the employer's
obligations under a provision such as clause 5.4. Thus, for example, it was pointed out by
Vinelott J in Merton London Borough v. Stanley Hugh Leach Ltd (1985) 32 BLR 51 at 88 that
the date when otherwise information might be required may be postponed if the contractor
falls behind his programme. It does not necessarily follow that the consultant is thereby
relieved of the duty, but, as already stated, it may mean there will be no consequences to the
client if the information does not arrive at a time when the contractor is not in a position to
make use of it. Thus RBH's case stems from liability to TW for non-compliance with clause
5.4 and TW's claim. The client has a distinct interest in avoiding not only claims but the pos-
sibility of claims and in my judgment there is ample justification for requiring the consultant
to comply with its original obligations if to do so would prevent the contractor claiming. Thus
under clause 23.1 of the JCT conditions the contractor has a distinct obligation to proceed
'regularly and diligently' and the employer is under a corresponding obligation not to hinder
or prevent that obligation - the references to Roberts v. Bury Improvement Comrs (1870) LR 5
CP 310 made by [counsel for the claimants] and [counsel for some of the defendants] are
apposite here, as is [counsel for some of the defendants'] citation from McCarrick v. Liverpool
Corp [1946] 2 All ER 646, [1947] AC 219. In Roberts Kelly CB and Blackburn and Mellor JJ
said ((1870) LR 5 CP 310 at 326) -