Dispute Resolution

In light of recent weather, contractors should be checking their entitlements under their contracts.

Snow, rain, wind. That just about sums up the last couple of weeks. It’s been hard to avoid this last fortnight’s adverse weather – especially if you work in the construction industry.

 

What are you entitled to?

 

When assessing any entitlement to recover loss or expense for weather events, the form of contract used is key. Different standard form contracts give different entitlements (or no entitlement at all!).  This can clearly be seen from a compare and contrast undertaken between NEC 3/NEC 4 and JCT contracts. In short, where adverse weather occurs, the NEC contract permits a claim for both time and money, whereas a JCT contract will only entitle the contractor to an extension of time.

Under both types of contract, the hurdle is high. For contractors governed by JCT, the weather must not only be adverse but “exceptional”. For those using NEC, the weather must be so bad that it occurs less than once every ten years. Even then, it is only the difference between the extreme conditions and the average data that can be claimed for.

 

Planning ahead

 

It’s best not to leave it until the middle of winter to check your contractual position.

Below are a few things that you can do whilst the sun is still shining:

  • Assess the risk: When entering into a contract, the possibility (or inevitability) of bad weather should form part of any assessment of risk. This should, in turn, feed in to the pricing and programming of the works.
  • Check Contract Data: Make sure to specify where weather data is to be taken from, and that this is as close as possible to the site.
  • Notify if necessary: Check what you are entitled to ahead of time, alongside any notice requirements you might have to fulfil to make a successful claim. Whatever the weather, failure to comply with these requirements can leave any contractor high and dry.
Lucy McCracken
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