As part of our new blog series, ‘Demystifying Delays and Extensions of Time in JCT Contracts’, this article examines a question that lies at the heart of most delay discussions in the construction sector: which events entitle a contractor to additional time?
The short answer is that the contract sets out a list of defined scenarios, known as “Relevant Events”, which, if they cause delay, may justify pushing back the completion date. If the cause of the delay isn’t on the list, the contractor won’t be entitled to an extension, regardless of how real the problem may be.
Rather than working through the list in order, we’ve grouped the ‘Relevant Events’ by theme. That makes them easier to follow and easier to apply in practice.
What’s new
The 2024 edition of the JCT Design and Build Contract introduced some important changes to the list of ‘Relevant Events’:
- Broader coverage for unexpected site conditions, including asbestos and contamination
- A new epidemic provision, even covering outbreaks that began before the contract date
- More expansive treatment of government intervention
- Clearer recognition of terrorism and civil unrest
These reflect lessons learned during COVID-19 and recent global events. The changes generally improve clarity and shift risk more fairly onto the party best placed to manage it.
1. Events caused by the employer
The most straightforward group of ‘Relevant Events’ are those caused directly by the employer. These include:
- Changes to the works
- Instructions to suspend or vary the work
- Late possession of the site or failure to provide access
- Non-payment by the employer (if it leads to suspension)
- Any act, impediment or default by the employer or its team
These events usually entitle the contractor to both time and, depending on the circumstances, financial recovery.
2. Site conditions and unforeseen discoveries
The updated contract now lists a broader range of site-related risks:
- Contamination, including asbestos and pollutants
- Unexploded ordnance
- Antiquities, archaeological finds and fossils
These are often unforeseen and costly to deal with. Under the new regime, they can justify an extension of time, provided the contractor hasn’t caused or contributed to their presence.
3. Government and regulatory interference
Changes in the law or action by public bodies can also give rise to EOT claims:
- Changes in statutory requirements after the base date
- Delays caused by statutory undertakers such as utilities
- Government guidance or instructions impacting the works
- Delays in obtaining necessary consents or approvals, such as building regulations, despite timely applications
These events reflect the regulatory environment contractors must operate within, and the contract now gives them better protection.
4. Epidemics and public safety events
One of the more noticeable changes in 2024 is the inclusion of epidemics:
- Epidemics affecting labour, materials or suppliers
- Government responses to outbreaks, such as restrictions
- Terrorism or civil commotion
The wording here is broad enough to cover a range of scenarios and acknowledges the potential disruption that external threats can cause.
5. Weather and force majeure
Extreme weather and other major events may also be ‘Relevant Events’:
- Exceptionally adverse weather that goes beyond typical seasonal variations
- Fire, flood or other specified perils
- Force majeure
- Strikes or lockouts affecting the project workforce
These events usually entitle the contractor to time only, not money, and rely on the contractor being able to show genuine impact.
Time, money or both?
One key point to remember is that an EOT only deals with time. Some ‘Relevant Events’ also entitle the contractor to loss and expense, but not all.
Employer-related delays, such as variations and late access, often lead to both time and money. Others, such as weather or strikes, usually only allow an extension of time. The distinction matters.
A few practical points
Stick to the definitions: Not every setback will be a ‘Relevant Event’. The contract wording matters.
Act promptly: As we covered in the first article, you must give notice as soon as it is apparent the delay will affect completion. If you don’t, your claim may fail.
Be clear and proportionate: Focus on delays that move the completion date and provide enough detail to back it up. Avoid inflating minor issues.
Beware mixed causes: If your delay has more than one cause, some qualifying and some not, you will need to unpick them carefully.
Why it matters
The EOT mechanism is designed to allocate risk fairly. Broadly speaking:
- The Employer takes responsibility for their actions and risks tied to the site or approvals
- The Contractor takes responsibility for performance and normal project risks
- No one takes the blame for truly unforeseeable events, but the contract offers time relief
Knowing which events qualify is essential to making the process work.
Stay informed with Berwick Law
Our team at Berwick Law is dedicated to advising businesses and individuals on resolving important and complex problems. By launching this blog series, we hope to empower you to manage construction projects with greater confidence and clarity.
Keep an eye out for our first post and get the clarity you need to manage your construction projects successfully.
For more information on how we can assist you, please contact our Director, Warren Berwick, or our Solicitor-Advocate, Dominic Patching.
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As with all our blogs, these are intended to share general information. If you have any specific contractual issues, you should take specific legal advice.