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JCT: Is it legally permissible for a Contractor to clam loss of profit or expenses due to unproductive time on site under JCT Minor Works Building Contract 2016?
A very similar question has been answered before for the 2009 version of the JCT contract so I was wondering if this has changed since then. I have read through the 2016 contract and I cannot see any clauses the Contractor could use to charge these however I just received a valuation from my contractor and he has added both as an additional expense to the work completed so far.
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Whilst the only contractual provision in JCT MW 2016 entitling the contractor to loss and expense is in relation to variations (clause 3.6.3) this does not prevent the contractor from claiming loss and expense as a result of prolongation or disruption provided this was not caused by its' own failings. It merely means there are no explicit terms for ascertaining and paying the loss and expense, and no powers for the architect to quantify or agree them. There is also the absence of contract terms preventing claims for loss and expense.
This means the contractor can still bring a claim for loss and expense against the employer at common law by means of adjudication, arbitration or the courts and it has to based based on a breach of an express or implied term by the employer. If the contractor has been awarded an extension of time by the architect, a claim for loss and expense in relation to this would be reasonable.
The contractor should compile the claim, submit it to the employer and attempt to negotiate a settlement prior to considering adjudication.
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