Summary on Presentation of Extensions of Time Claims In any claim for an extension of time, and whether or not there is a require-

ment to give details and particulars, it is good practice to include the following:

a description of the cause of delay and the contractual provision which is being relied upon for the extension;

the date when the delay commenced and the period of delay (giving details of intermittent effects, if appropriate);

the date of notice of delay, the reference of the relevant document;

a summary of records and particulars relied upon (with copies included in an

a narrative of the events and effects on progress;

a diagrammatic illustration showing the status of the programme, progress and current completion date prior to the commencement of the delay;

a diagrammatic illustration showing the effects of the delay on progress and the completion date (including subsequent delays which may have reduced the float in the programme);

a statement requesting an extension of time for the delay to completion for the period shown on the submitted illustrations.

5.5 Recovery of Loss Expense Damages

Whilst failure to give notice of delay for extensions of time is not usually fatal to a claim, failure to give notice in accordance with the contract with respect to additional payment may bar, or severely prejudice a claim.

There are good reasons for contracts to have provisions for the con- to give notice. No employer will wish to have a substantial claim

118 Construction Contract Claims

appearing 'out of the blue' at the end of a contract. In J. and J.C.

Abrahams v. Ancliffe 2 NZLR 420, a contractor estimated the cost of building two residential units at $30000. Several months later the employer's architect issued a specification for the work and the contractor commenced work. It became evident that the specification provided for more expensive work than that which had been allowed for in the con- tractor's estimate. There were also problems in the foundations which increased the amount of work done and general building costs were esca- lating. The employer repeatedly asked the contractor for details of the expected costs but at no time did the contractor reply. When it came to settle the account, the employer argued that the contractor was in breach of a duty to give reliable information about the costs of building before the employer became committed to completing the units at an uneconomic cost. It was held that the contractor was under a duty of care to the employer in giving its original estimate and to inform the employer as soon as it was aware that costs were going to substantially exceed the estimate. In most forms of contract, the onus is not entirely upon the contractor to keep the employer informed of increases in the contract price. In most instances, the employer relies to a great extent on his professional advis- ers. In varying degrees (according to the terms of the contract) there must be co-operation between the employer's professional advisers and the con- tractor so that any increase in the contract price can be ascertained at the earliest possible time: London Borough of Merton v. Stanley Hugh Leach Ltd (supra). Where there are no express terms, co-operation is usually implied. Most construction contracts have express provisions making it clear as to what form this co-operation should take.

In the UK, contractors may normally seek remedies under the common law in addition to, or alternatively to, rights under the contract: London Borough of Merton v. Stanley Hugh Leach Ltd (supra). However, under no such alternative remedy is available since the contract excludes the contractor's rights under the general law (sub-clause 44.4). That is to say, the contractor's rights are limited to the rights set out in the contract: Strachan Henshaw Limited v. Stein Limited (1998) 8 7 BLR 52. In some countries, it may not be possible to exclude rights under the general law.

Exclusion clauses

It should be noted that if there are no remedies for breach set out in the contract, or if a contractual remedy limits liability for breach of contract, a clause purporting to exclude liability may not be effective in the UK (an exclusion clause). In George Mitchell (Chester Hall) Ltd v. Finney Lock Seeds Ltd (1983) it was held that a clause which limited the

Formulation and Presentation of Claims 119 seller's liability to the costs of cabbage seed in the event of failure of the crop could not prevent the buyer from succeeding in a claim for full damages in the event of the crop being of no commercial value.

Similar provisions in construction contracts have arisen. In Miller v London County Council LT 425, the contract provided that there should be no allowance in respect of money, time or otherwise, other than such extensions of time as may be given. It was held, obiter Parq that the clause did not include delay due to extras or interference by the employer or persons for whom the employer was responsible, that is the contractor may be entitled to compensation if the employer causes delay (whatever the clause says).

In some US jurisdictions 'no damages for delay' clauses are enforceable. In Hudson's Building and Engineering Contracts, eleventh edition, the author writes at page

'Clauses of this kind would appear to be prime candidates for avoidance under the English Unfair Contract Terms Act 1976 [sic, or similar legislation elsewhere.

Most civil law jurisdictions expressly prohibit contractual provisions which attempt to bar a remedy for breach of contract. For example, Section 3 7 3 of the Civil Code of Thailand states:

'An agreement made in advance exonerating a debtor from his own fraud or gross negligence is void.'

Under South African law, nothing prevents an employer contracting out of the consequences of his own breach. For example, extension of time clauses frequently provide for an extension of time but no monetary com- pensation. Where the extension of time arises from the employer's breach, such as failure to grant possession of site, the contractor would be entitled to the relevant time but nothing further.