The way to deal with an Extension of Time Claim.
In the 2010 Scottish Court of Sessions case of City Inn v Shepherd Construction, five propositions relative to the proper approach to the application of clause 25 (the extension of time clause) of the JCT contract were given. You need to be aware of these propositions which are.
• Before any claim for an extension of time can succeed, it must be shown that the relevant event is likely to delay or has delayed the works.
• Whether the relevant event actually causes delay is “an issue of fact which is to be resolved, not by the application of philosophical principles of causation, but rather by the application of principles of common sense”.
• The decision maker can decide the question of whether the event has caused delay to completion by the use of whatever evidence he considers appropriate. If demonstrated to be sound, this may take the form of a critical path analysis, but the absence of such an analysis does not mean the claim will necessarily fail.
• If a dominant cause can be identified in respect of the delay, effect will be given to that by leaving out of account any cause or causes that are not material. If the dominant cause is not a relevant event, the claim will fail.
• Where there are two causes operating to cause delay, neither of which is dominant, and only one of which is a relevant event, a contractor’s claim for an extension of time will not necessarily fail. Rather, it is for the decision maker “approaching the issue in a fair and reasonable way, to apportion the delay in completion of the works… as between the relevant event and the other event.”
In Scotland at least, the decision is now binding on lower courts. In England, it is not binding, but given that it is an appellate decision, is very persuasive.
Parties that are pursuing (or defending) an extension of time claim under a JCT contract need to be ware of this latest ruling as this may have a major impact upon the way that a claim is pursued (or defended).
If you would like any further information on this matter, or if you would like to discuss how the judgment may affect an extension of time claim that you are pursuing or defending, please do not hesitate to contact Melbury Construction Consultants Ltd for specific advice.
• Before any claim for an extension of time can succeed, it must be shown that the relevant event is likely to delay or has delayed the works.
• Whether the relevant event actually causes delay is “an issue of fact which is to be resolved, not by the application of philosophical principles of causation, but rather by the application of principles of common sense”.
• The decision maker can decide the question of whether the event has caused delay to completion by the use of whatever evidence he considers appropriate. If demonstrated to be sound, this may take the form of a critical path analysis, but the absence of such an analysis does not mean the claim will necessarily fail.
• If a dominant cause can be identified in respect of the delay, effect will be given to that by leaving out of account any cause or causes that are not material. If the dominant cause is not a relevant event, the claim will fail.
• Where there are two causes operating to cause delay, neither of which is dominant, and only one of which is a relevant event, a contractor’s claim for an extension of time will not necessarily fail. Rather, it is for the decision maker “approaching the issue in a fair and reasonable way, to apportion the delay in completion of the works… as between the relevant event and the other event.”
In Scotland at least, the decision is now binding on lower courts. In England, it is not binding, but given that it is an appellate decision, is very persuasive.
Parties that are pursuing (or defending) an extension of time claim under a JCT contract need to be ware of this latest ruling as this may have a major impact upon the way that a claim is pursued (or defended).
If you would like any further information on this matter, or if you would like to discuss how the judgment may affect an extension of time claim that you are pursuing or defending, please do not hesitate to contact Melbury Construction Consultants Ltd for specific advice.
posted by Melbury at
14:58
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