Pundits have suggested that the way JCT05 handles extensions of time has radically changed. Are their concerns well founded? Or do they protest too much?

Will the extension of the regime JCT05 produce a sea change in the way contractors and contract administrators handle extensions of time, as Andrew Hemsley argued (10 February)? Gillian Birkby (3 February) took a more measured view, rightly concluding that we should not assume that the effect of the new wording will be the same. So let's look at the changes Andrew identifies and see if his argument stacks up.

  • Contractor to give details of the effect of "each event" rather than just "relevant events"
Ultimately, the contractor will still choose which events to identify. It will presumably give details of the effects of only those events identified. If the contractor doesn't give details of each event, what sanction is there? None. Failure by the contractor to notify events for which it is liable is unlikely to affect its entitlement. This change could perversely lead to less involvement on the part of contract administrators because it appears to put the onus on the contractor to identify its own culpable delay. But which contractor worth its salt is going to do that? The emphasis is therefore likely to fall back on the contract administrator to make sure it is up to speed with delays across the board. Practically, this change will have little effect.
  • Contract administrators to "decide" rather than "give" extensions of time?
Let us assume that the change identified by Andrew is a change. He thinks it will require something more "active" on the part of contract administrators. But is deciding really more "active" than fixing extensions of time? Such a terminological change will make little difference in practice.

Fundamentally, therefore, what the contract administrator must do is the same under JCT05 as it was under JCT98, and that is to "estimate" an extension of time that is "fair and reasonable".

  • Contract administrator to state the extension attributable to each relevant event
How many times has failure by contract administrators to be open about their extension of time decision-making led to disputes? In my experience, far too many. But although contract administrators will need to break down overall extensions into chunks of time attributable to stated events, they won't have to state the reasons behind an award. So, while the change might represent a step in the right direction, and should make it easier for contractors to dissect extension of time decisions, it will not lead to a sea change.

How many times has failure by administrators to be open about their extension of time decision-making led to disputes? Far too many …

  • Contract administrators to notify contractor in writing where no extension of time due
In fact JCT98 did require the contract administrator to notify the contractor in writing where no extension was given, but that requirement was subject to the qualification that it be "reasonably practicable having regard to the sufficiency of the aforesaid notice, particulars and estimate". Gillian reminded us of this, but she also suggested that the absence of the proviso in JCT05 means that the contract administrator must "fix a later date" even with insufficient information. In reality all the new wording does is require that where no extension is to be given, the contract administrator must say so, irrespective of whether the particulars are sufficient. He needn't fix a later date if they are not. So, does the change really do anything but add an administrative task? There is no corresponding obligation to state the reasons in cases where no extension of time is awarded. Had such an obligation been included, that might have had some teeth. But the new provision will add little.

There are other aspects of Andrew's article with which I would disagree. For example, are quick extension of time decisions likely to be good ones? Probably not, and certainly not without suitable contractual programming requirements to back up the process. And does Andrew think that if contract administrators take the full 12 weeks to make their decisions they are ever likely to be challenged for not making them "as soon as reasonably practicable"? Unlikely, in my view.

Overall, his treatment of the JCT05 extension of time regime is a trifle misleading. Changes, yes. Sea change, no.