Comprehensive reference on all major and commonly used building contracts with a step-by-step approach to producing claims
Covering all the major and commonly used building contracts, Building Contract Claims considers the legal basis of building contract claims and shows what can and cannot be claimed, providing the contractor, employers and their advisors with a simple, concise, and effective source of information for use when preparing, submitting, or dealing with a claim.
This highly regarded book examines the legal basis of claims for extensions of time and additional payment under the main forms of construction contract. It includes chapters dealing with the principles for extensions of time, financial claims (including for variations or compensation events), common law and global claims, employer claims, duties of the employer’s representative, substantiating claims, claims for time and money under the JCT 2016 and NEC4 contracts and sub-contracts, and claims for professional fees.
With the publication of the sixth edition, Building Contract Claims has been reordered to provide a step-by-step approach to producing claims and thoroughly revised to ensure it is fully up to date with the latest contracts, court judgments, and building practice. Updates include:
- Revision of chapters covering extensions of time in line with the second edition of the Society of Construction Law’s Delay and Disruption Protocol
- New material to reflect the JCT 2016 contracts and the NEC4 contracts
- Expanded coverage of employer claims
- Updated sections for JCT 2016 and NEC4 sub-contracts
- Claims for professional fees (for design consultants, contract administrators, quantity surveyors or project managers) under the commonly used conditions of engagement
The new edition of Building Contract Claims is an essential reference for contractors, contract administrators, project managers, and quantity surveyors, as well as architects, contracts consultants, and construction lawyers.
Table of Contents:
List of Cases xvii
List of Figures xxxi
List of Tables xxxiii
Preface to the Fifth Edition xxxvii
Preface to the Sixth Edition xli
List of Abbreviations xliii
Part I 1
1 Introduction 3
1.1 General Introduction to ‘Claims’ 3
1.2 Standard Forms of Contract Considered in This Book 7
1.3 Types of Claims by the Contractor 11
1.4 Types of Claims by the Employer 13
1.5 Structure of This Book 15
2 General Principles 17
2.1 Entitlement 17
2.2 The Burden of Proof 21
2.3 Causation 22
2.4 Categories of Claim 24
2.5 The ‘Knock-on’ Effect 29
2.6 Damages 32
2.7 Mitigation 33
2.8 Betterment 36
2.9 Notices 37
3 Time 47
3.1 General Points 47
3.2 Extension of Time Clauses in Building Contracts 60
3.3 Critical Path Analysis and Planning Software 63
3.4 The Society of Construction Law Delay and Disruption Protocol 66
3.5 Methods of Delay Analysis 67
3.6 Float 95
3.7 Concurrency 99
3.8 Acceleration 100
3.9 Sectional Completion 108
3.10 ‘Milestone’ or Key Dates 112
3.11 Foreshortened Programme 113
4 Financial Compensation: Recovery of Direct Loss and/or Expense or Additional Costs 119
4.1 Definition 119
4.2 Direct V Indirect 122
4.3 Exclusion of Indirect or Consequential Loss 123
4.4 The More Common Heads of Loss 126
4.5 Quantum Meruit Claims 148
4.6 Exclusive Remedy Clauses 150
4.7 Claims at Termination of Contractor’s Employment 151
5 Claims for Variations Under the Contract, Acceleration, Bonus Clauses and Contractor’s Share 161
5.1 Definitions and Scope 161
5.2 JCT 2016 Contracts – Definitions of Variations 172
5.3 NEC4 Contracts – Definition of ‘Compensation events’ (Including Variations) 193
5.4 Valuation Under JCT 2016 Contracts 203
5.5 Valuation Under NEC4 Contracts (Including ‘Contractor’s Share’) 221
5.6 Acceleration Provisions 233
5.7 Bonus Clauses 235
6 Basis for Common Law Claims 239
6.1 General 239
6.2 Implied Terms 243
6.3 Variation of the Contract Itself (Not a Variation Under the Terms of the Contract) 249
6.4 Omission of Work to Give it to Others 250
6.5 Extra Work 253
6.6 Possession of the Site 255
6.7 Incorrect Information 258
7 Global Claims 263
7.1 General Points 263
7.2 Basic Principles of Global Claims 263
7.3 The Current Position 265
7.4 Summary 267
8 Employer Claims Against the Contractor 269
8.1 General 269
8.2 Delay Damages (Liquidated Damages) for Late Completion 270
8.3 Procedures for Deducting Liquidated Damages for Late Completion 284
8.4 Defences to Liquidated Damages for Late Completion 288
8.5 Defects: Reduction/Abatement of the Contract Price 295
8.6 Employer Claims for Other Breaches of Contract 300
9 Duties of the Employer’s Representative 303
9.1 Employer’s Representatives (Architects’, Contract Administrator’s and Project Manager’s) Powers and Liability to the Contractor 303
9.2 Quantity Surveyor’s Role 319
10 Preparation and Substantiation of Claims 333
10.1 Preparing a Claim 333
10.2 Types of Evidence Required to Support a Claim 340
Part II 355
11 Extensions of Time Under JCT 2016 Contracts 357
11.1 Introduction 357
11.2 The Contractor’s Notifications 359
11.3 Fixing a New Completion Date 363
11.4 Relevant Events – Grounds for Extensions of Time 375
12 Loss and/or Expense under JCT 2016 Contracts 397
12.1 Introduction 397
12.2 The Contractor’s Application and Assessment 402
12.3 Ascertainment by the Employer or His Representative 419
12.4 The ‘Relevant Matters’ 427
13 Claims Under NEC 4 437
13.1 Introduction 437
13.2 Assessing Changes to the Prices 438
13.3 Assessing a Delay to the Completion Date and/or a Key Date 438
13.4 The Project Manager’s Assessments 441
13.5 The Compensation Events 442
Part III 469
14 Sub-Contract Claims 471
14.1 Introduction 471
14.2 Variations Under the Sub-Contracts 476
14.3 Extensions of Time Under Sub-Contracts 486
14.4 Loss and Expense Under the Sub-Contracts 501
14.5 Main Contractor Claims Against Sub-Contractors 510
15 Professional Fee Claims 517
15.1 Introduction 517
15.2 Claims Made by Consultants 527
15.3 Client Claims Against Consultants 538
Appendix A Example of Contractor’s Claim for Reimbursement of Direct Loss and/or Expense Under the JCT 2016 Contracts 543
A.1 Introduction 543
A.2 Example Particulars 544
A.3 Explanation of Costs or Expenditure 546
A.4 Loss and Expense for Employer Delay 1 – Details 549
A.5 Loss and Expense for Employer Delay 1 – Entitlement and Quantum 550
A.6 Loss and Expense for Employer Delay 2 – Details 550
A.7 Loss and Expense for Employer Delay 2 – Entitlement and Quantum 550
A.8 Observations for Loss and Expense for Employer Delay Claims 1 and 2 555
Appendix B Example of Compensation Event Claim Under NEC4 561
B.1 Introduction 561
B.1.1 Details of the Compensation Event 561
B.1.2 Observations on the Compensation Event Assessment 564
Index 581
About the Author :
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.
