Civil Engineering Reference
In-Depth Information
his thinking in the sentence that followed that which I cited first, that 'to allow an employer
to deduct without making a requirement in writing means that the words “may require in
writing” are superfluous'. The judge in my view is not to be understood as making a temporal
point in using the word 'before'.
Issue (2)
From the language of clause 24.2.1 I consider that there are only two matters which must be
contained in the written requirement. One is whether the employer is claiming a payment or
a deduction in respect of LADs. The other is whether the requirement relates to the whole or
a part (and, if so, what part) of the sum for the LADs. I stress the words 'the sum' because it
is quite clear, in my view, from the language of clause 24.2.1 that what is required is a state-
ment of the sum in respect of LADs . . .
For my part, I do not see that clause 30.1.1.3 really assists the contractor in the present case.
The reason for the deduction can be made plain by the employer by referring to the fact that
what he is claiming is LADs. That in itself imports that there has been a failure to complete
on the completion date. Nor do I understand the difficulty said to face the contractor. The
contractor will know at the time of the requirement in writing the length of the overrun and
the contractor will know the existing completion date and the date of practical completion if
that has already been certified. Counsel for the plaintiff said that the employer may not know
the completion date because a completion date fixed by the architect subsequent to the original
contractual completion date is not required to be notified to the employer under the provisions
of the contract. For my part, I regard the notion that the employer will not know the revised
completion date as wholly unreal. The architect is the employer's agent. In my judgment, it
really cannot be assumed that the draftsman of clause 24.2.1 would have contemplated the
possibility that the employer did not know of the actual completion date in operation at the
time of a requirement in writing.
Until another completion date is fixed, the employer is entitled to claim LADs for the whole
of the period of the overrun, repaying under clause 24.2.2 the excess when a later completion
date is fixed by the architect under clause 25.3.3. But the employer, if he knows that a later
completion date is likely to be fixed by the architect, may sensibly prefer not to claim the whole
of the LADs which are available to him at the time of the requirement, but he may not know
what later completion date is to be fixed. I do not see why the clause should be construed as
requiring the employer to specify the precise dates of the overrun, the LADs for which he is
making the subject of a requirement, so long as the LADs which he is requiring to be paid or
allowed do not exceed the whole of the LADs to which he is entitled at the time of the require-
ment. No doubt it will be good practice for the employer to make its position clear beyond
doubt. No doubt in certain circumstances, where the case is particularly complicated, it may
be highly desirable that explanations should be given. But I would be reluctant to import into
this commercial agreement technical requirements which may be desirable but are not required
by the language of the clause and are not absolutely necessary and any breach of which would
defeat the intended entitlement of the employer. Indeed, I would say that in the present case
there is no ambiguity in the contractual language to leave me in any doubt as to what informa-
tion clause 24.2.1 requires to be given to the contractor . . .
Extensions of time
Unless there is an extension of time clause, the contractor is under a strict obligation
to complete on time, unless he is prevented from doing so by acts or breaches of the
employer or by operation of the law.
