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Construction and Engineering Update

Published: 1st February 2010

ADVERSE WEATHER: DON'T LET YOUR CLAIMS SLIP ON ICE

The recent spell of arctic weather brought construction projects of all sizes to a halt across the country. So, what contractual remedies are available for the delays and costs caused by this current cold snap? Where does the risk lie in such unusual circumstances which are beyond the control of the parties?

The remedies available will vary from contract to contract so it is always important to check the contractual provisions for each individual project. However, many standard form contracts do provide for adverse weather conditions, however the treatment is markedly different between the forms.

JCT Standard Forms

The JCT standard forms of contracts refer to "exceptionally adverse weather conditions" as a "Relevant Event" giving rise to an extension of time claim but not to a claim for loss and expense. That of course then raises the questions of what are "exceptionally adverse weather conditions". The JCT does not offer further clarification as to what this means or how the effect is to be assessed. Although the word "exceptionally" suggests that unusually severe weather will be required, the matter is largely left to the discretion of the Architect.

Should the Architect decide that the "Big Freeze" constituted "exceptionally adverse weather conditions", the contractor must then prove that the weather has caused an unavoidable delay to the project. This will not always be clear and calculating the effect of the bad weather may prove to be extremely difficult if the project has also been delayed for other reasons such as contractor default.

NEC

The NEC3 attempts to provide greater certainty than the JCT. The NEC provides an entitlement to a claim for loss and expense and delay for adverse weather. The contract will specify the weather station for recording the weather measurements and the four standard measurements:-

• the cumulative rainfall;
• days with rainfall over 5mm;
• No of days with maximum air temperature of less than 0 degrees Celsius; and
• The number of days with snow lying at a specified time.

are required to be recorded for each calendar month.

To be entitled to an extension of time or a "Compensation Event" the weather event must have exceeded the weather measurements set out in the Contract Data. Whilst this does provide some precision as to when the "weather event" arises, there is an issue as to whether the "weather event" is limited to the specific days which qualify or the whole month where a "weather event" occurs. This has been the subject of two major disputes that we have been involved in but the issue has yet to be fully settled by the Courts.

Another issue with the NEC is that weather measurements are based on the weather conditions recorded at the location of the weather station, which rather bizarrely does not have to be at the site where the works are taking place. For example, if the weather conditions at the construction site are more severe than the place where the weather station is located, the contractor may have no entitlement.

GC Works

The GC/Works/1 Edition 3 specifically excludes weather conditions from the list of matters entitling a contractor to an extension of time.

Notice

Regardless of the form of building contract used, it is vital to ensure compliance with all notice requirements as soon as possible when considering a claim for delay.

Under the JCT the Contractor is required to notify the employer "forthwith" that a "relevant event" has occurred and provide the Employer with an estimate of the expected delay as soon as possible thereafter.

Under the NEC the contractor must provide notice within 8 weeks after the event advising the employer/project manager that the sub-zero temperatures or the snowfall constitutes a Compensation Event.

Supporting evidence should accompany the notice or follow as soon as possible thereafter.

What to do now

• Check the terms of your particular contract (for each project) to establish your entitlement.
• Protect yourself as far as you are able by ensuring any notices served are in accordance with the Contract.
• Consider mitigating LAD claims, in case the extension of time is unsuccessful.
• Ensure accurate records are kept which may support your claim.
• Check your sub-contracts to ensure they are back to back with the building contract.
• Try to reach agreement with the Employer/Contractor/ Sub-Contractors on how to deal with any delay. Be prepared to negotiate!

If this raises any questions for you or your organisation please contact Charles Tomlinson or Ken Salmon in our Construction and Engineering Department in Manchester: 0161 214 0511.