Late drawings, unavailable access and unanswered requests for instructions can prevent a contractor from progressing work. They can also leave an engineer or architect carrying staff costs while a development stands still. The contract may provide rights to additional time or payment, but client delay does not automatically permit you to suspend or terminate.
The immediate task is to identify the client's obligation, the effect of its default and the contractual procedure for dealing with it.
Identify Who is Responsible
Establish what should have been supplied and when. A programme showing your preferred information date does not necessarily establish that the client promised to provide it by that date.
Read the obligations concerning access, information and instructions together with your own design, coordination and notification responsibilities. Where a consultant or contract administrator is involved, responsibility for its conduct depends on the contract and the circumstances. A late response is not automatically a breach by every party connected with it.
Record the Effect on Progress
Keep requests for information, meeting minutes and a record of the activities affected. Explain why the missing information or access prevents work, rather than merely listing unanswered emails.
For example, late foundation design may prevent excavation or concrete works and then affect later trades. Other activities may remain possible. The relationship between the event and actual delay needs evidence, particularly where your own delays or other events overlap.
Updated programmes and contemporaneous site records can help show that relationship. They are more persuasive than a reconstruction based only on recollection after the project has ended.
Claim Additional Time and Money Separately
An extension of time adjusts the contractual completion deadline. It does not necessarily compensate you for the cost of remaining on the project longer.
Additional payment may arise under a loss and expense provision, a compensation event mechanism or another contractual or legal right. The names and requirements differ between standard form contracts. Professional appointments may have separate provisions for changes, prolonged services or suspension.
Give the notices and particulars required for each entitlement. Some contracts make compliance with notification deadlines a condition of recovery. Do not assume that the client's awareness of its own delay excuses a missing notice.
Can I Set a Final Deadline?
You can request a clear response date and explain the consequences of continued failure. However, an instruction that information must be issued "within seven days or we leave site" does not necessarily create a subsequent right to terminate.
The significance of a deadline that you impose post-contract being missed depends on the obligation concerned. Some deadlines are essential; many others are not. In appropriate circumstances a reasonable notice requiring performance can assist, but its effect must be assessed in the context of the original breach and the contract. It cannot manufacture a right to abandon an otherwise continuing obligation, and it may clash with the pre-agree contract conditions.
When Might Termination be Justified
Termination should always be considered as a last resort. It will inevitably mean you are waiting longer to get paid, and perhaps having to front legal costs, compared to if you are able to resolve an issue with a client.
The contract may allow termination following a specified period of suspension or a defined client default, subject to notices and other conditions. Check whether the event relied on actually falls within the clause.
There may also be a right at common law where the client's breach is sufficiently serious, judged against the bargain as a whole. A temporary failure which can be resolved will often differ from conduct which makes the essential purpose of the contract unattainable or clearly rejects essential obligations. The assessment must be made on the facts at the relevant time.
Keep Your Own Obligations in Mind
While the contract remains in force, you generally remain bound by your own obligations unless there is a separate basis for withholding performance. A right to claim time or money is not a general right to stop work. Be careful to avoid thinking that a client’s breach entitles you to stop, only to find out stopping has put you in breach.
If client delay is affecting your work on a project, or your ability to perform your professional appointment, contact Hamshaw to discuss notices, recovery of additional costs and whether the circumstances support further action.