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"
- Contract administrators to "decide" rather than "give" extensions of time?
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 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
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.
Nick Lane is a construction lawyer at Travers Smith: email@example.com