The worldwide challenge created by the coronavirus (Covid-19) is likely to have an impact on construction projects in the UK whether directly or indirectly due to public health implications or Government measures. In the case of live construction projects these implications may manifest themselves in relation to availability of people, delays in deliveries and, in the worst case, site closures.
The delay and additional cost consequences flowing from these implications will need to be assessed should contractors claim relief from performance or request instructions. Contractors may look for extensions of time (to avoid paying delay damages), the recovery of additional cost and in extreme circumstances even termination.
JCT contract forms are somewhat unusual in that they contain few express provisions about how to deal with this kind of situation. This note therefore examines how claims might arise under JCT contracts and how they might be applied.
What is a "force majeure" clause?
What events fall within the scope of a simple force majeure clause?
When will force majeure relief be available?
Contractors are well advised to document carefully all steps taken and to follow the contract variation procedure closely to ensure that costs falling within the scope of a variation can be distinguished and thereby recovered.
While there is authority that "reasonable endeavours" carries with it a lesser obligation than to use "best endeavours"8 each case needs to be considered in view of the performance obligations as prescribed in the contract and the circumstances in which force majeure is being asserted. The courts considered the contractual obligations to use "reasonable endeavours" to avoid or overcome force majeure and to use "reasonable endeavours" to remedy delays in performing the contract.9 They decided that these provisions required the party invoking force majeure to consider its own interests as well as the interests of the counterparty expecting performance and where, as in that case, the party seeking relief had an alternative means of performing the contract, it should have done so irrespective of the fact that it would cost money to do so.
Covid-2019: Managing Contracts
Whether the implications of the Covid-2019 amount to force majeure is not as clear cut as one might suppose, and will be fact specific.
A case of infection amongst site workers causing a site shut down for a period of time is probably likely to fall square within the definition.
Where supplies from overseas are delayed due to disruption at ports or lack of vessels availability the position is rather less clear. Such events might be enough if the supply contract was entered into before the emergency became apparent. The contractor might need to consider whether it can take reasonable steps to try to obtain the same supply from alternative suppliers, even if it means breaking its original supply contract. But it should take into account any cancellation costs payable to the original supplier, the price of alternative supplies and the additional time it would take to obtain the alternative supply, relative to the anticipated delays to the original supply. Supply constraints in affected areas might cause capacity constraints elsewhere in the global supply market.
It may be less likely that force majeure relief will be available if the supply contract has not been placed. One would expect the main contractor to try to obtain supplies from an alternative, more secure, source even if more expensive.
On the other hand, if the contract specification requires the use of, say, Italian marble, a variation which permits an alternative will arise if substitution is instigated by the employer. If the contractor instigates the use of an alternative for the employer’s approval a variation does occur. However, the employer may decide that the time saved by ordering a variation is a better outcome than for the contractor to sit out the delay claiming a force majeure event with no guarantee of when it will end.
Delays in the supply chain caused by government mandated shutdowns may well fall within the scope of a change in law provision providing specific remedies. The exact wording of those clauses will be key. For example, in the main JCT 2016 forms the exercise of a statutory power by the UK Government or a local authority which "directly affects the execution of the Works" will qualify for time relief, subject to mitigation measures. Similar action by other governments might not qualify for relief. Other JCT drafting on change in law is somewhat “UK centric” and does not reflect the use of an international supply chain particularly well. One hopes that in practice a pragmatic approach will be adopted.
1. Matsoukis v Priestman (1915) 1KB 681
2. B&S Contracts v VG Publications  ICR; Channel Island Ferries Ltd v Sealink UK Ltd  1 Lloyd's Rep 323
3. Seadrill Ghana Operations Ltd v Tullow Ghana Ltd  EWHC 1640 (Comm), and Classic Maritime v Limburgan Makmur SDN BHD & Anor  EWA Civ 1102]
4. Thames Valley Power Ltd v Total Gas & Power Ltd  EWHC 2208 (Comm)
5. IBM (UK) Ltd v Rockware Glass Ltd CA  FSR 335
6. 20-152 page 791
7. A Noble, 'Contractors' and sub-contractors' constant best endeavours to prevent delay' Const. L.J. 1997, 13(5), 293-296
8. UBH (Mechanical Services) Limited v Standard Life Assurance Co. T.L.R, 13 Nov. 1986 (Q.B.)
9. Seadrill Ghana Operations Ltd v Tullow Ghana Ltd  EWHC 1640 (Comm)
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2021