Clash points

A lot of emotion surrounds the so-called “fuel crisis”. But a certifier looking at an application for an extension of time for delays caused by the crisis under JCT98 needs to look coolly at whether he has the power to award an extension. He has power if a “relevant event” has occurred and he will breach his duty to his client if he issues an extension where it has not.

Clare argues that Clause 25.4.4 would apply if the fuel crisis is deemed a “local combination of workmen” affecting trades engaged in the preparation, manufacture or transportation of any goods or materials for the works. But was it? The words were clearly intended to encompass unofficial strike action by site workers. An alliance of farmers and truck drivers probably does not amount to a “local combination of workmen” and they are very unlikely to be themselves engaged in the preparation, manufacture or transportation of any goods for the works.

That leaves force majeure. Clare mentions Lebeaupin. The judge in that case said war, strikes and direct legislative or administrative interference could come within the term. He also said “a force majeure clause should be construed in each case with a close attention to the words which precede or follow it, and with a due regard to the nature and general terms of the contract. The effect of the clause may vary with each instrument”.

So, the meaning is far from clear and force majeure is not a term of art in English law. There is very little authority, but the textbooks suggest that if the reference to force majeure is undefined, as in the JCT contracts, performance of the relevant obligation must have been prevented by an event of force majeure – not merely hindered or rendered more onerous.

In other words, it is akin to frustration under English law. The closure of the Suez Canal was not treated as a force majeure event by the House of Lords even though it meant that delivery of cargo could only be made via the Cape of Good Hope, which was commercially disadvantageous.

There must be very real doubt whether ad hoc picketing that resulted in widespread shortages at petrol stations but did not prevent transportation by other means could amount to a force majeure.

A further difficulty is caused if clause 25.4.10 has been deleted: there is a strong argument that the courts may look at deletions physically contained in the document to assist in its construction. If this is correct, the deletion of clause 25.4.10 shows the courts that the parties did not want extensions to be given on this basis.

Certifiers should tread warily before accepting the arguments put to them by contractors for delays caused by the fuel crisis.