Delays and possession

During the period following the acceptance of a tender a contractor may carry out certain preparatory works or take appropriate procurement measures. The period of time that the contractor has to carry out and complete the works is usually calculated by reference to the date upon which the contract work on site commences. A delay in commencement is likely to give rise to a delay in completion.

If the contract stipulates an agreed commencement date or date of possession, the employer must give the contractor possession of the site on the agreed date. If no date is specified, there will be an implied term that the site will be handed over to the contractor within a reasonable time of signing the contract. See Roberts v Bury Commissioners.

If the employer fails to afford possession of the site on the agreed date (or within a reasonable time), the contract may expressly provide for the consequences of such failure. For example, the JCT 2016 Standard Form of Building Contract permits the employer to defer giving possession of the site for a period not exceeding 6 weeks calculated from the relevant 'Date of Possession' provided for in the contract (see clause 2.5), if adopted. Such a provision will prevent the employer from being in breach of contract and liable for damages, but the contractor will have alternative remedies which will be found in clause 2.29.3 (extensions of time) and clause 4.20 (loss and expense).

Alternatively, under the same form of contract, the architect may issue an appropriate instruction (pursuant to clause 3.15) to postpone the works, but this will also give rise to the same remedies for the contractor. However, the period of any postponement should not exceed the period of time stated in the contract particulars (two months is the suggested default period) and, if that period is exceeded, then subject to the giving of appropriate notices, this may lead to the termination of the contractor's employment under the contract (see generally clauses 8.9.2 to 8.9.4).

Where the contract does not provide for the consequences of the employer's failure to give possession of the site on time (whether by reference to an agreed date or a reasonable time), the contractor will be prima facie entitled to damages (Whittal Builders Ltd v Chester-le-Street District Council (1985) 11 Con LR 40).  In sufficiently severe cases, the failure to provide access may be capable of amounting to a repudiatory breach of contract, which may entitle the contractor to terminate the contract and make a claim for damages. However, if the contractor chooses to start work later than the date agreed, they may be deemed to have waived the right to terminate (since they will be taken to have affirmed the contract), but in principle at least, the contractor's claim for damages will not be lost. See Roberts v Bury Commissioners.

Third party causing delay in giving possession

If delay in giving possession of the site is caused by the acts of third parties (e.g. preventing access to the site), the issue of whether the contractor has a remedy against the employer will depend upon the proper construction of the relevant terms of the contract. Thus, in LRE Engineering Services Ltd v Otto Simon Carves Ltd, it was determined that a main contractor had provided a physical means of access and was not in breach of a general term to afford access to a sub-contractor where access to the site was effectively prevented by picketing strikers.

In contrast, in Rapid Building Group Ltd v Ealing Family Housing Association Ltd (1984) 1 ConLR 1, an employer was held to be in breach of clause 21 of the JCT 1963 Form of Contract (which provided that possession of the site should be given to the contractor on a date specified in the appendix to the contract) in circumstances where squatters prevented possession being given because the employer had failed to remove the squatters from the site.