Wise Up Wednesday: How To Make A Claim For Covid-19 Delays

Don’t get caught out by Covid-19 delays. If your works have been delayed or disrupted by Covid-19, site closures or new procedures and social distancing measures, then you may be able to claim for additional time and money under the contract.

So How Do You Make That Claim?

First things first, it’s important to ensure that you do not fall foul of any contractual time bar due to a lack of notice. So, make sure to check your contract and notify the Contractor or Client at the earliest opportunity.

Notice provisions normally require you to notify of any delay or disruption and to notify the Contractor that you are incurring additional costs. The timescales will depend on the specific wording of the contract.

Covid-19 Delays- Is The Pandemic A Specified Event?

When it comes to delay and disruption, the JCT contracts refer to “Specified Events”, but most contracts JCT or otherwise do not deal with COVID-19 or a pandemic as a specified event giving rise to an extension of time and additional reimbursement. So we need to look at other provisions as opportunities to make a claim.

Change in Statutory Requirements

It is at least arguable that the actions, instructions, guidelines and laws implemented by the government to date constitute a change in statutory requirements that affect the performance of your work. Undoubtedly this will be tested in the courts in due course.

For example, JCT Design and Build Subcontract DBSub/C 2016 Clause 2.19.15 refers to the exercise by the UK Government or any Local or Public Authority of any statutory power which directly affects the execution of the Works. This could be applicable where your site is suspended or shut down, where travel restrictions or additional site restrictions are imposed and which impact on your ability to complete the work.

Is It A Variation?

If the Contractor instructs you to comply with social distancing rules, revised site working hours or other procedures, it is at least arguable that this is covered by provisions such as Clause 5.1.2 of DBSub/C which refer to “… the imposition of an obligation or restriction in regard to

  1. access to the site
  2. limitations of working space
  3. limitations of working hours
  4. the execution or completion of the work in any specic order”

and is therefore be a variation, entitling you to time and money.

Postponement Caused By Covid-19 Delays

If the works were postponed by the Employer, the instruction given could be considered to constitute one of a number of the different Relevant events under Clause 2.19 of DBSub/C 2016 and you would be entitled to time and money.

Prevention by the Contractor or Employer

Finally, it may be that the Employer or Contractor is unable to perform his obligations in a timely manner, which cause you to suffer delay and disruption. In these circumstances, his failure to approve, certify, inspect, monitor or supervise the work may hinder or prevent you from completing the work in a timely and economic manner.

JCT DBSub/C specifically refers to any impediment, prevention or default, whether by act or omission, by the Employer or the Contractor.

Common Law Rights

Unless the contract restricts them, you also have a common law right to claim for prevention which would entitle you to additional time and money. Your common law rights may be worth considering depending upon the exact words of your contract.

Covid-19 Delays: Don’t Ignore Your Right To Claim

don't be disrupted by covid-19 delays

Do not be put of by Contractors who say that they are not making claims against the Employer. This may well be because they have already negotiated some kind of favourable “deal” with the Employer outside the terms of the contract. It may be because it’s their supply chain that is incurring all the additional cost!

What is certain is that the effects of Covid-19 delays will continue to impact construction in numerous ways, many of which might not yet have manifested themselves. So, I would recommend that you consider all potential impacts whether they have actually materialised yet or not.

And one final thought. Don’t go it alone. Claims are something of a black art and whilst you can find lots of free information that can help you on our website, please pick up the phone and give our friendly team a call on 01773 712116.

The extra value to your business of recovering what you are entitled to, will be significantly more than the cost of the investment in external expert support.

I hope you enjoyed this week’s ‘Wise Up Wednesday’ email and that it gave you some food for thought.

Please remember if you have any problems caused by Covid-19 delays, or need any support please take action sooner rather than later. If you’re not sure what you need, or just want a second opinion, please give us a call on 01773 712116, or email StreetwiseSubbie here. Alternatively, please use our contact form.

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