“Let it snow, let it snow, let it snow...”

17/02/2011

By Chris Whittington, Partner and Head of Construction & Engineering.

The seemingly endless appalling weather during December will have brought major disruption to many projects. It will have stopped work being carried out, even if the workforce was able to get to the site.

Contractors and sub-contractors will be looking to claim extensions of time as a result, and possibly extra money. Whether they are entitled and to what extent will depend on what their contract says. Who bears the cost of bad weather is, ultimately, an allocation of commercial risk. If it rests on the contractor they will, in an ideal world, have tried to factor it into their price. With margins as tight as they are at the moment, few can afford that luxury.

What does the contract say?

If the contract simply doesn’t say anything about adverse weather, then in most cases adverse weather is a matter of contractor’s risk. The contractor will have an uphill struggle to persuade the employer they should be entitled to loss and expense or, if there is a fixed completion date, an extension of time. However, if there is no fixed time, adverse weather should clearly be taken into account when considering if the works were undertaken in a ‘reasonable’ time.

JCT or NEC contracts

If they have contracted on the JCT or NEC forms then adverse weather is catered for, albeit in different ways. The following summarises the ‘default’ position if the contract has not been subject to amendment to reallocate (or share out) the risk.

Under JCT a contractor is entitled to an extension of time for “exceptionally adverse weather conditions”, but not to loss and expense. Whether conditions are “exceptionally adverse” is a matter of subjective judgment, although using meteorological data for previous years in that area at that time of year will assist.

NEC provides specific criteria for weather conditions to apply. Such conditions must not have occurred more frequently on average than once every ten years. Given the most recent problems have occurred at least three times in the last two years, at some stage similar weather may not bring the entitlement to an extension of time.

Summary

Check the terms of your contract carefully, particularly any amendments to the standard forms - some employers may have deleted adverse weather as a “relevant event”.

It is also very important to check provisions for notifying a claim to ensure that it does not become time-barred. In the NEC, if notification is not given within eight weeks of the contractor actually becoming aware or when they could reasonably have become aware, the entitlement to claim is lost.