This topic is for all questions raised on our webinar “An introduction to the Extensions of Time Provisions under JCT D&B Contract”. If you haven’t already attended it, you can sign up here
What’s it about?
A recent survey suggests that over 20% of all construction projects are completed late. Sound familiar? Delays can be caused by a multitude of different reasons and the JCT Design and Build contract apportions these contractual risks in a number of different ways.
The aim of this webinar is to walk you through the provisions for an extension of time for Contractors, under the JCT Design and Build Contract. @stevencevans @chriscorr
Have there been any contract developments with covid related delays, supply of materials etc?
Presumably the Employer doesn’t want to tie up the Contractor on providing extensive information - rather than doing the works?
Contract allows 12 weeks to assess delay. SCL advocates assessing at time delay is notified, or as close thereto as practicable. However, that wouldn’t permit the assessment of an EOT to account for any time savings achieved by way of contractor’s mitigation and there is no provision to reduce an earlier EOT either. What are your thoughts on waiting up to the point at which it becomes apparent whether any mitigation has been possible, to confirm an EOT (up to 12 weeks after notification)?
Any authorities as to how long ‘forthwith’ is?
What happens if the contractor does not issue a Notice of Delay? @stevencevans
There is no direct sanction against the Contractor for failing to notify a delay, but the Employer would be within their rights to assess the extension of time based on the actions they would have taken if they had been notified earlier
JCT have issued some advice on how to deal with COVID related issues under JCT contracts
Providing the information required by the Contract is as much a contractual obligation upon the contractor as doing the works. The more information available to both parties, the less likley that a risk will eventuate and impact upon time, cost, quality or safety.
The contract requires the Employer to make a final assessment of extension of time 12 weeks after completion to take into account any further delays or any mitigation. Interim assessments should be made as soon as possible, and the final assessment 12 weeks after completion takes into account any facts not known about when the delay is first assessed
Yes, in Trafigura Maritime Logistics Pte Ltd v Clearlake Shipping Pte Ltd [2020] EWHC 995 (Comm) (27 April 2020), but it doesn’t really help.
In that case, the courts did not use the dictionary definition, but came up with their own:
“In my judgment the word “forthwith” in the present context envisages that the security will be provided in the shortest practicable time. What is practicable will inevitably depend upon the circumstances of the case.”
In other words, prett quickly, but depends on the facts.