Bad weather is certainly no joke to those disrupted on construction projects. When the winter passes, will we see the floodgates open and a deluge of claims by contractors for relief under the contract as a result of inclement weather? In our latest update, we review the position in this area.
How bad does the weather have to be?
A contractor's right to claim in respect of delays caused by inclement weather is entirely dependent on the terms of the contract.
If the contract is silent, and does not afford the contractor any relief due to bad weather, then the risk will fall entirely upon him - however dreadful the conditions might be.
Most contracts, however, will expressly allocate risk for inclement weather. The choice of (un-amended) standard form contract will determine how a weather event is treated. For example, under the JCT (Joint Contracts Tribunal) suite of contracts, a contractor's entitlement to additional time is only allowed for Relevant Events - one of which is "exceptionally adverse weather conditions". But what does this mean and what does a contractor have to prove?
There is little legal authority or guidance on what constitutes "exceptionally adverse weather" which often leads to disputes. It is often suggested that a contractor would need to present the meteorological records for the last ten years, if it wanted to show that the weather encountered was "exceptionally adverse" within the meaning of this provision.
But what does this mean? Well, simply arguing that the weather was "worse than average" is unlikely to be enough because, in order to produce the "average", there must have been weather worse than that resultant average in the last 10 years. For example, a winter which is almost as bad as it was five years ago is not exceptionally adverse. Pickavance (in his text Delay and Disruption in Construction Contracts: Third Edition para 4.99) summarises the position as follows:
"...it seems doubtful whether exceptional in this sense can be construed to mean, for example, "above average" since, as "average" necessarily implies, it must be normal to experience levels of adverse weather both above and below the average in order to have an "average". Logically it seems then that "exceptional", in this sense, must thus be something in excess of the ultimate highs and lows used to calculate the average...".
The key word is "exceptionally". The contractor is not entitled to an extension of time simply because the weather is adverse. The weather must be exceptional for that location, at that time of year, and must delay the overall works.
Other types of standard form contract have tried to provide greater certainty in respect of weather measurement. The NEC (New Engineering Contract) adopts the approach that, if the relevant weather within a calendar month can be shown to occur less frequently than once every 10 years, then that constitutes a compensation event under the contract.
No delay - no claim
If the contractor has demonstrated that the weather was exceptionally adverse etc., then the next step to a successful claim would be to demonstrate that the weather actually caused delay: and evidence will be required.
A contractor will be required to provide contemporaneous evidence to document the impact and duration of the adverse weather in order to satisfy the Architect or Contract Administrator that the weather encountered was "exceptionally adverse". This could take the form of, for example, weather reports for the relevant period along with site diaries and photographs.
Further, and most importantly, the contractor must show that the weather actually caused critical delay, i.e. delay to the end-date. It is important for good records to be kept; it will otherwise be difficult for the contractor to demonstrate the impact and effect of the weather.
Time but no money?
Exceptionally adverse weather is not a Relevant Matter under the JCT suite of contracts. If a contractor can demonstrate that the weather was exceptionally adverse and did cause critical delay to the works, the contractor is entitled to an extension of time - but not money.
Where exceptionally adverse weather conditions occur, under JCT, the risk is thus shared between the employer and the contractor: the contractor will benefit from an extension of time but will not recover the loss and expense inevitably associated. The employer, on the other hand, will be unable to withhold or deduct liquidated and ascertained damages for the late completion of the project, as so caused.
By comparison, NEC3 entitles the contractor to consequential loss of time and money, once adverse weather is proven.
Practical points to minimise risk
- Check the terms of the contract to clarify the allocation of risk and entitlement to relief for adverse weather conditions. Ensure the terms of any subcontracts are back to back with the main contract. Remember that, if nothing is said, the contractor takes the entire risk as regards his client.
- For greater certainty, consider specifying in the contract the objective criteria by which to measure the exceptional nature of the weather conditions, for example, by use of meteorological data.
- A contractor may wish to make allowances in its programme and contract sum for "normal" adverse weather.
- Ensure compliance with the notice provisions under the contract and notify problems/potential delays as soon as possible.
- Keep good records, both of the weather encountered but also its impact on site operations, for evidential purposes.