Let it snow, let it snow, let it snow...

It has taken its time but winter has finally arrived. Snow has started to fall. If the winters of 2009 and 2010 are anything to go by be prepared for heavy snowfalls and the inevitable disruptions to construction projects. So what are your rights under the standard forms? Is a Contractor entitled to an extension of time?

JCT

Under the JCT Design and Build 2011 the Contractor will need to establish that the snow resulted in "exceptionally adverse weather conditions" in order to claim an extension of time. However, such circumstances are not a Relevant Matter entitling the contractor to loss and expense.

The words "exceptionally adverse weather conditions" are not defined. Therefore, whilst some snow may cause delay, only exceptionally adverse weather conditions from snow will constitute a Relevant Event. It will depend upon the facts of each case and whether the weather on site was exceptional. The Contractor must establish that the completion of the Works or any Section is likely to be delayed beyond the relevant Completion Date.

How do you protect yourself? Keep a diary log of the weather experienced on site (including the amount of snow and the temperatures) and the activities that were supposed to have been carried out and could not be carried out. Take photographs and keep a print out of the weather report for the days in question. The Contractor must constantly use his best endeavours to prevent delay and should give notice to the Employer of the delay as soon as it becomes apparent that the progress of the Works or any Section is being or is likely to be delayed.

NEC

The NEC is different. It does not make a distinction between extensions of time and the loss and damage arising from the extension of time. The Contractor must establish that the weather occurs "less frequently than once in ten years" in order qualify as a "compensation event" entitling it to an extension of time and money. The Contract Data Part 1 details where weather measurements are to be taken and what measurements are to be recorded for each calendar month. The weather measurements are then compared with "weather data" which are records of previous weather in each month. Again, the Contractor must show that the snow has delayed completion.

How do you protect yourself? Ensure that the Contract Data is correctly completed so that the weather measurements are taken on site and the weather data is recorded close to the location where the weather measurements are made. Keep a log and evidence of the weather measurements. The Contractor must give notice of the compensation event within eight weeks of becoming aware of the event otherwise it could lose its right to a change to the Completion Date.

BE PREPARED

Review the contracts that you have in place, or that are being placed, to check the provisions relating to weather. It is common for Employers to delete weather clauses. Contractors should ensure that its main contract sits back to back with its sub-contracts so that it can pass any responsibility for delay on to the sub-contractors. Also brief sub-contractors and staff to ensure that, if bad weather does hit, they are keeping good records.

If you require more information regarding this or any other construction topic, please do not hesitate to contact the
Construction Team at Clarke Willmott.

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