THE TIMESCALE MINEFIELD
It is never to early but usually it’s far to late………
It is a rare occasion in this industry and I suspect most others as well, when we have to advise a client that he has approached us far to early in the dispute process for us to assist him in resolving his issue. However, conversely it is nearly always the case, that a client contacts us with a problem that has been troubling him for weeks, months and even years sometimes.
We despair at the timeframes that have passed, never to return and the usual practices of the client up the line, in amending standard contract forms to impose condition precedent type clauses and firm timescales for addressing such issues and problems. Case law is littered with such contractual conundrums, such as, if you miss the deadline for an extension of time application does this expose you to the client imposing liquidated and ascertained damages against you….. (the answer is – ‘it depends’)
Where contracts have been amended with such words as ‘it shall be a condition precedent to the..’ then take heed of the warning and flag up the event that requires such notice to all and sundry within the site team and those managing them. Failure to address these may not be entirely fatal but it certainly will not help resolve any disputes that arise as a direct result of same. Similarly, standard forms such as the JCT suite, contain clear wording on timeframes ‘…shall submit … within 3 months of practical completion of the Works..’ and not so clear wording, such as; ‘..if and whenever it becomes reasonably apparent…’ All of these timescales are a call to action they should not be ignored or considered optionally depending on how you feel after a few months of encountering such ‘challenges’ that arise on construction projects. No client will argue for you that it was reasonable to finish the project before advising on the piling delays encountered in week one…. It is an unfortunate habit that clients adopt when practical completion is approaching, that they dust off the contract from the archives and have a good old read through the amendments that they had drafted some years back and surprise, surprise they commence their reliance on the contract now that the project has virtually completed and it is time to value the final account…… Cynical maybe, true possibly, and likely where timescales have been missed – it happens time after time…… why take that chance and risk this most obvious defence of your client…
In short, the earlier that we get involved, the better will be your negotiating position and the less likelihood of such an easy defence from your client based on a time-barred position and thereafter the daunting prospect of a drawn out legal challenge…….
Call us on 01480 426555 to discuss any matters relating to the above or prior to entering into contract let us have a brief review of the proposed contract to highlight any conditions precedent or equally onerous clauses.