When it comes to the weather, architects need to recognise that contractors often have a case for extensions of time
Under the JCT 1998 form, an architect must award an extension of time where the completion of the works has been, or is likely to be, delayed by a 'Relevant Event' beyond the completion date. Claims for late information or the effect of variations as Relevant Events are quite common, but how is the 'neutral'Relevant Event of exceptionally adverse weather to be assessed?
Previous JCT forms and frequent amendments refer to 'inclement' weather.
There is no clear legal authority on either word, but looking at their ordinary meaning, inclement means bad or stormy weather, such as rain, cold or wind, while adverse means unfavourable or hostile conditions - which could include extreme heat.
Importantly, adverse does not simply mean adverse to the type of work being undertaken on site at any point in time, as is often the argument adopted by architects in rejecting the contractor's initial claims.
Rainfall records In Walter Lawrence v Commercial Union Properties (1984), the court made clear that it must be the weather itself that is 'exceptional'. In judging what is exceptional, an assessment can be based on information from local and Met Office records, which provide averages going back 30 years. It also has figures for 10-yearly average values which tie in with the approach of the Engineering and Construction Contract (formerly the NEC) and which would provide guidance, although no definitive view, as to whether the climate was exceptional for the purposes of JCT forms.
Although comparing records may establish if the weather was exceptionally adverse, it does not prove any entitlement to delay. Additionally, an architect must analyse both the contractual wording and the facts surrounding any application for an extension of time to see if the Relevant Event caused delay in practice.
As the judge stated in the Royal Brompton Hospital case (2001): 'It seems to me that it is a question of fact in any case whether a Relevant Event has caused, or is likely to cause, delay to the works beyond the completion date.'
Similarly, the judge in Balfour Beatty v Chestermount (1993) stated that the assessment of actual delay is 'fundamental' to any extension of time review.
Rain stopped play The Walter Lawrence case considered the assessment of delay where works were carried out in adverse weather during the contract period but later than originally programmed. The architects had stated in correspondence: 'It is our view that we can only take into account weather conditions prevailing when the works were programmed to be put in hand, not when the works were actually carried out.'
The judge stated that the contractor was entitled to an extension of time and that an architect must consider the effect of the adverse weather at the time that the works in question were carried out - not at the time they were programmed to be carried out - even if this resulted from the contractor's own delay.
There is no contractual programme in the JCT forms and the contractor can organise the works in any way it sees fit. Despite the obligation to proceed with the works regularly and diligently, the judge found that this did not require the contractor to programme the works in the strict sense. Hence, until the works exceeded the contract period, the contractor could always seek the benefit of adverse weather in claiming an extension of time. However, the judge in the Walter Lawrence case suggested that this approach did not necessarily apply when adverse weather was encountered outside the contract period.
In Balfour Beatty v Chestermount, the judge decided that an extension of time should be granted for a variation issued after the completion date.
However, he then specifically considered the question of weather-related delays after the completion date, and queried what would happen if a storm flooded the site during such a period of culpable delay by the contractor.
Although the JCT form enabled the architect to consider post-completion-date Relevant Events for the purposes of an extension of time, the judge suggested that unlike, say, late information, it would be difficult to view an extension of time for adverse weather after the completion date as 'fair and reasonable', as the weather delays would have been avoided had the contractor not been in breach of its obligations in over-running the completion date.
IFC 98 makes it clear that once the works extend beyond the completion date, the contractor takes the risk of exceptionally adverse weather, as well as any other 'neutral' event, such as force majeure, strikes and acts of statutory undertakers.
Failing such contractual clarity, architects administering JCT 98 contracts will continue to find themselves under severe pressure from contractors to award extensions. The answer is to make clear the basis on which 'adverse' should be judged and whether extensions of time should be awarded once the contractor is in culpable delay, rather than leaving the question to be judged on a 'fair and reasonable' basis.
Simon Nurney is a partner and John Wevill a solicitor in City law firm Macfarlanes, tel 020 7831 9222