Under JCT SBC/Q 2016 clause
2.29.1, ‘variations and any other matters or instructions which under these conditions
are to be treated as, or as requiring, a variation’ is a ‘relevant event’ under
clauses 2.27 and 2.28 thereby (ordinarily) entitling the Contractor to an
extension of time. The relevant events1 which confer a right on the Contractor to extend the completion time
to include compliance with architect’s instructions regarding discrepancies
between contract documents (clause 18.104.22.168) or any impediment, prevention or
default, whether by act or omission by the Employer. In JCT 2016 suite, the
time extension is dealt under clause 2.28 which uses the mechanism of relevant
event, which when occurs, the Contractor is entitled to time extension. The
architect should reach any decision under clause 2.28.1 as soon as reasonably
practicable and under clause 2.28.3, the architect is required to apportion
time to each relevant event and omission.
At common law, if the Employer acts in a way to make
it difficult or impossible for the Contractor to complete the works in the
contractually stipulated timescale – e.g. by instructing additional works or
some other contract variation – then the Employer cannot insist on strict
adherence to the specified completion date. If the Employer orders extra work
beyond the original contract which will require additional time to complete the
work and in the absence of any time extension provisions in the contract, the
Employer is no longer able to claim any penalties as a result of the late
In summary, it is necessary for the Contractor to
evaluate whether the Employer’s instruction for additional works (variation) constitute
a relevant event, which will cause delays and cost to the project or will it be
considered as breach of the contract wherein the fundamental nature of works
have been changed and make it impossible to perform the contract. The
Contractor has an onerous obligation under clause 2.27.2, where it must give
particulars of the expected effects of each relevant event.
The Contactor will have to serve notices to the
Employer on issues related to variation works, notices must be submitted as
soon as it is reasonable to do so2
or without delay or loss of time3.
The notice will detail the reasons why the Contractor thinks the instruction constitute
a variation under the terms of the contract. The notice should indicate the
likely impact of the relevant event which could potentially entitle them to
additional time and cost. The Contractor must further submit his time extension
and cost claim to establish the cause and effect of the variation works to the
progress of the works and therefore the project completion.
In conclusion, the provisions in the JCT 2016 suite
are adequate to deal with variations under the contract which will entitle the
Contractor to suitable cost and associated time (as applicable).
Word count for Part B of Coursework: 1634
1 Trollope & Colls Ltd. v. North West Metropolitan
Regional Hospital Board 1973 2 All E.R. 260 and Peak Construction (Liverpool)
Ltd. v. McKinney Foundations Ltd. (1970) 1 B.L.R. 111.
2 London Borough of Hillingdon
v Cutler 1967 2 All ER 361.
3 Roberts v Brett (1865) 11 HLC