Problem: I am the Managing Director of a specialist contractor and have a problem with a main contractor.
We both signed a sub-contract for a construction project we had won in late 2012, and it stipulated a start date of 1 February 2013, and set period in which to complete the work. I then received emails from 2 different members of the project management team postponing the start date, with one stating the new start date as 18 February 2013 and another one stating 22 February 2013, both as a result of delays caused by other trades.
We started work but the project has taken a lot longer than everyone anticipated due to other trades hindering progress. We are now being accused of failing to commence the work as per the original start date. The main contractor has stated in a letter that we should have commenced on 1 February 2013 and because of our ‘breach’, it intends to recover costs for the delays.
Because I have documented evidence from the main contractor changing the start date, would this make the original signed contract null and void? Would it be the responsibility of the main contractor to issue a new contract to sign with the new start date on? Can we still be bound by this contract despite one of the major terms being altered greatly on record?
Thanks in advance.
Richard, Great Glen.
Response: Hello Richard. Since the contract is signed, save for exceptional circumstances (i.e. subject matter is illegal, frustration etc), mutual rescission etc., both parties have entered into a legally binding contract and hence are bound by the terms therein. This means that the commencement date of 1 February 2013 is an expressed term under the contract and if you do not commence on this date you are in breach, unless the date for commencement has been validly changed.
Although you have not mentioned whether the contract is a standard or a bespoke form, it is obvious that the main contractor has issued instructions to delay commencement which you have accepted by virtue of your conduct (i.e. starting later than the commencement date expressed in the contract without dissent).
I would therefore suggest that the contract start date has been delayed to the start date evidenced in the latest of the two communications that were issued by the main contractor’s staff.
Further, if you can show that your progress was hindered by events out of your control, culpability of which was that of the main contractor, it must follow that your work did not cause a delay to the date for completion. A contracting party cannot derive a benefit from its own negative act/s or omission/s.
Best of luck.
© Michael P. Gerard MSc, PGDipLaw, PGDipBar, FCIOB, MCIArb, MAE
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.
Author background
Michael is a Barrister, Chartered Builder, Registered Adjudicator & Accredited Expert in quantum and planning matters. He is Managing Director of Michael Gerard & Co www.michael-gerard.co.uk, a company of chartered building consultants and quantity surveyors who provide a specialised service in the areas of construction law, quantum, programming, business recovery and insolvency support to the construction industry. Michael is also a consultant with Silver Shemmings LLP, a London practice of solicitors specialising in construction.