Extension of Time Claims: What a Subcontractor Has to Show
Many extension of time claims are weakened long before anybody argues about the programme.
The damage is often done in the first weeks of a delay, when a required notice is late, vague or never sent. By the time a claim is being assembled, the best evidence of what happened may simply be whatever was recorded at the time.
Notice comes first
JCT contracts contain procedures requiring notice when delay becomes apparent, followed by supporting particulars. The precise requirements depend upon the particular JCT form, edition and amendments used, and a subcontract may use different terminology and procedures from the corresponding main contract.
The safest rule is therefore simple: read the contract actually signed, rather than assuming the unamended standard form applies.
NEC takes a different approach.
Under the standard NEC4 Engineering and Construction Contract, clause 61.3 requires the Contractor to notify a compensation event that the Project Manager has not already notified. A failure to notify within eight weeks of becoming aware that the event has happened can prevent the Prices, Completion Date or a Key Date being changed. That time bar is subject to the exceptions within the clause, including specified events arising from actions of the Project Manager or Supervisor. NEC subcontracts have their own provisions and periods, and amendments can alter the standard position.
Being on the list is not enough
An event falling within the contractual definition of a Relevant Event, Relevant Sub-Contract Event or Compensation Event may provide the basis for an entitlement.
It does not, by itself, establish the adjustment claimed.
The event still has to be considered against the particular contractual mechanism, and its effect on completion has to be established. An event affecting an activity with available float may have a very different effect from an event affecting planned completion.
A credible delay submission therefore connects:
event → affected activity → programme consequence → effect on completion.
A clear delay narrative supported by appropriate programme analysis makes that connection visible rather than asking the reviewer to take it on trust.
The records that carry a claim
When IMH reviews a delayed project, the starting point is usually what already exists.
Team interviews
The people involved in the project can help establish the factual chronology while events remain fresh.
Contemporaneous communications
Letters, emails, minutes, notices and site diaries can establish what happened, when it became apparent and what was communicated at the time.
Productive hours: planned against actual
Comparing planned and actual labour can provide evidence of disruption, although productivity data still has to be connected to the event said to have caused the loss.
Drawings and revisions
A drawing register and revision history can help identify when design or scope changed. The contractual significance of that change still depends on the contract and the circumstances in which the revised information was issued.
Time and money are not necessarily the same entitlement
Under JCT forms, Relevant Events concern extensions of time while Relevant Matters concern potential loss and expense. The categories can overlap, but they involve separate contractual tests and procedures. JCT 2024 has also introduced changes to the lists of Relevant Events and optional Relevant Matters, making the precise edition and Contract Particulars important.
Under NEC4 ECC, the effects of a Compensation Event on Prices and time are dealt with through the Compensation Event machinery. Not every event will necessarily alter both.
Obtaining additional time does not automatically establish an entitlement to every additional cost claimed.
Keeping the job working while the claim is made
On one remediation scheme, unforeseen structural conditions pushed the programme back by more than a year and increased costs substantially, largely through prolongation.
Relations between the contractor, Employer's Agent and funder were strained and formal proceedings appeared increasingly likely. IMH set out the delay drivers and associated costs in substantiated terms, kept the commercial exchanges measured, and worked through revised sequencing and interim arrangements.
The revised programme and final contract sum were agreed without court proceedings.
If progress is slipping and nobody has yet reviewed the contractual notification requirements, that is the time to act, while the relevant periods are still running and the evidence is still being generated.
Related reading: Case Study: Navigating Seven-Figure Delays and IMH's Practice Areas
This article provides general commercial commentary and is not legal advice on a particular contract. The applicable legislation, contractual terms and amendments, and the particular facts should always be checked.
