FAQs

The following FAQs are addressed:

• If the employer fails to afford possession of the site on the agreed date, can the contractor terminate the contract?
• Is the employer liable to the contractor in the event that a third party prevents the contractor from obtaining possession of and/or access to the site?
• Is the employer obliged to give possession of the whole of the site to the contractor?
• How should the employer delay commencement of the works due to e.g. problems obtaining planning permission?
• Is the contractor liable once in occupation of the site to trespassers who suffer personal injuries while on the site?
• Do I have to do a delay analysis and how sophisticated does it have to be?

If the employer fails to afford possession of the site on the agreed date, can the contractor terminate the contract?

Ultimately, this will depend on the terms of the contract in question. If the contract provides for what is to happen in this eventuality, the relevant provisions will govern the party's rights and obligations. However, if the contract contains no such provision, then one of the contractor's options is to terminate the contract for repudiatory breach.

Is the employer liable to the contractor in the event that a third party prevents the contractor from obtaining possession of and/or access to the site?

This will depend on the terms of the relevant contract. If the contract contains an express obligation on the part of the employer to afford possession of the site by a particular date, then unless the contract provides a remedy for such an occurrence, the employer will be in breach of contract and liable to the contractor for the consequences of the third party's actions. Standard form contracts may provide a remedy in the form of an extension of time and loss and expense.

Is the employer obliged to give possession of the whole of the site to the contractor?

Without express provision in the contract to the contrary, the contractor can ordinarily expect to be given possession of the entirety of the site. It is possible for the employer to make provision in the contract for phased handover or granting possession of the site to the contractor in stages. This could be appropriate for e.g. the refurbishment of a large number of individual properties or the resurfacing of a long stretch of road.

How should the employer delay commencement of the works due to e.g. problems obtaining planning permission?

If problems obtaining planning permission have been anticipated before the contract is signed, the employer can and should make express provision in this regard. For example, it could be provided that the commencement of the works will be 'x' number of weeks from the date of obtaining planning permission. However, it is most likely in this situation that the contractor would be well advised to seek the insertion of a 'long stop' date which if exceeded, would bring the contract to an end. Employer's rights will be governed by the terms of the contract if planning permission issues arise after the contract has been entered into.

Is the contractor liable once in occupation of the site to trespassers who suffer personal injuries while on the site?

There is no definitive answer to this question. The situation is likely to be governed by the provisions of section 1 of the Occupier's Liability Act 1984 (as amended). The contractor may be liable to a trespasser for injuries suffered if it can be successfully established that the contractor knew or should have known that such a trespasser was in the vicinity of a danger on the site and that danger posed a risk against which, in all the circumstances, the contractor should have guarded against. The outcome of each case will be very fact dependent.

Do I have to do a delay analysis and how sophisticated does it have to be?

If there is a dispute over the actual extent of delay caused the tribunal is likely to give more credence to a sophisticated delay analysis than to a superficial impressionistic appraisal.

In many standard forms of contract the architect or engineer is appointed as an independent certifier to assess delay and grant an extension of time. In such a role it is not sufficient for the certifier to adopt a superficial impressionistic appraisal but must carry out a more sophisticated delay analysis.