Building Contract Claims

Guy Higginbottom is an experienced consultant who spent much of his career working in private practice, including as Group Commercial Director for a large, regional building contractor. He has also held senior positions at global consultancies such as Atkins Réalis (formerly Faithful+Gould), and Arcadis (formerly EC Harris LLP). Guy is also the author of Wiley’s ‘Design and Build Contracts’. David Chappell is an architect who has worked in both the public and private sectors, as well as acting as contract administrator for a building contractor.

• List of Cases xviiList of Figures xxxiList of Tables xxxiiiPreface to the Fifth Edition xxxviiPreface to the Sixth Edition xliList of Abbreviations xliiiPart I 11 Introduction 31.1 General Introduction to ‘Claims’ 31.2 Standard Forms of Contract Considered in This Book 71.3 Types of Claims by the Contractor 111.4 Types of Claims by the Employer 131.5 Structure of This Book 152 General Principles 172.1 Entitlement 172.2 The Burden of Proof 212.3 Causation 222.4 Categories of Claim 242.5 The ‘Knock-on’ Effect 292.6 Damages 322.7 Mitigation 332.8 Betterment 362.9 Notices 373 Time 473.1 General Points 473.2 Extension of Time Clauses in Building Contracts 603.3 Critical Path Analysis and Planning Software 633.4 The Society of Construction Law Delay and Disruption Protocol 663.5 Methods of Delay Analysis 673.6 Float 953.7 Concurrency 993.8 Acceleration 1003.9 Sectional Completion 1083.10 ‘Milestone’ or Key Dates 1123.11 Foreshortened Programme 1134 Financial Compensation: Recovery of Direct Loss and/or Expense or Additional Costs 1194.1 Definition 1194.2 Direct V Indirect 1224.3 Exclusion of Indirect or Consequential Loss 1234.4 The More Common Heads of Loss 1264.5 Quantum Meruit Claims 1484.6 Exclusive Remedy Clauses 1504.7 Claims at Termination of Contractor’s Employment 1515 Claims for Variations Under the Contract, Acceleration, Bonus Clauses and Contractor’s Share 1615.1 Definitions and Scope 1615.2 JCT 2016 Contracts – Definitions of Variations 1725.3 NEC4 Contracts – Definition of ‘Compensation events’ (Including Variations) 1935.4 Valuation Under JCT 2016 Contracts 2035.5 Valuation Under NEC4 Contracts (Including ‘Contractor’s Share’) 2215.6 Acceleration Provisions 2335.7 Bonus Clauses 2356 Basis for Common Law Claims 2396.1 General 2396.2 Implied Terms 2436.3 Variation of the Contract Itself (Not a Variation Under the Terms of the Contract) 2496.4 Omission of Work to Give it to Others 2506.5 Extra Work 2536.6 Possession of the Site 2556.7 Incorrect Information 2587 Global Claims 2637.1 General Points 2637.2 Basic Principles of Global Claims 2637.3 The Current Position 2657.4 Summary 2678 Employer Claims Against the Contractor 2698.1 General 2698.2 Delay Damages (Liquidated Damages) for Late Completion 2708.3 Procedures for Deducting Liquidated Damages for Late Completion 2848.4 Defences to Liquidated Damages for Late Completion 2888.5 Defects: Reduction/Abatement of the Contract Price 2958.6 Employer Claims for Other Breaches of Contract 3009 Duties of the Employer’s Representative 3039.1 Employer’s Representatives (Architects’, Contract Administrator’s and Project Manager’s) Powers and Liability to the Contractor 3039.2 Quantity Surveyor’s Role 31910 Preparation and Substantiation of Claims 33310.1 Preparing a Claim 33310.2 Types of Evidence Required to Support a Claim 340Part II 35511 Extensions of Time Under JCT 2016 Contracts 35711.1 Introduction 35711.2 The Contractor’s Notifications 35911.3 Fixing a New Completion Date 36311.4 Relevant Events – Grounds for Extensions of Time 37512 Loss and/or Expense under JCT 2016 Contracts 39712.1 Introduction 39712.2 The Contractor’s Application and Assessment 40212.3 Ascertainment by the Employer or His Representative 41912.4 The ‘Relevant Matters’ 42713 Claims Under NEC 4 43713.1 Introduction 43713.2 Assessing Changes to the Prices 43813.3 Assessing a Delay to the Completion Date and/or a Key Date 43813.4 The Project Manager’s Assessments 44113.5 The Compensation Events 442Part III 46914 Sub-Contract Claims 47114.1 Introduction 47114.2 Variations Under the Sub-Contracts 47614.3 Extensions of Time Under Sub-Contracts 48614.4 Loss and Expense Under the Sub-Contracts 50114.5 Main Contractor Claims Against Sub-Contractors 51015 Professional Fee Claims 51715.1 Introduction 51715.2 Claims Made by Consultants 52715.3 Client Claims Against Consultants 538Appendix A Example of Contractor’s Claim for Reimbursement of Direct Loss and/or Expense Under the JCT 2016 Contracts 543A.1 Introduction 543A.2 Example Particulars 544A.3 Explanation of Costs or Expenditure 546A.4 Loss and Expense for Employer Delay 1 – Details 549A.5 Loss and Expense for Employer Delay 1 – Entitlement and Quantum 550A.6 Loss and Expense for Employer Delay 2 – Details 550A.7 Loss and Expense for Employer Delay 2 – Entitlement and Quantum 550A.8 Observations for Loss and Expense for Employer Delay Claims 1 and 2 555Appendix B Example of Compensation Event Claim Under NEC4 561B.1 Introduction 561B.1.1 Details of the Compensation Event 561B.1.2 Observations on the Compensation Event Assessment 564Index 581