The relevant contractual provisions

"If and whenever it becomes reasonably apparent that the progress of the Works is being or is likely to be delayed the Contractor shall forthwith give written notice to the Architect of the material circumstances including the cause or causes of the delay and identify in such notice any event which in his opinion is a Relevant Event".

Clause 25.3.1 then provides:

"If, in the opinion of the Architect, upon receipt of any notice, particulars and estimate under clauses 25.2.1.1 and 25.2.2,

.1 any of the events which are stated by the Contractor to be the cause of the delay is a Relevant Event and

.2 the completion of the Works is likely to be delayed thereby beyond the Completion Date the Architect shall in writing to the Contractor give an extension of time by fixing such later date as the Completion Date as he then estimates to be fair and reasonable. The Architect shall, in fixing such new Completion Date, state:

.3 which of the Relevant Events he has taken into account and

.4 the extent, if any, to which he has had regard to any instruction under clause 13.2 requiring as a Variation the omission of any work issued since the fixing of the previous Completion Date,

...".

Clause 25.3.3 further provides as follows:

"After the Completion Date, if this occurs before the date of Practical Completion, the Architect may, and not later than the expiry of 12 weeks after the date of Practical Completion shall, in writing to the Contractor ...

.1 fix a Completion Date later than that previously fixed if in his opinion the fixing of such later Completion Date is fair and reasonable having regard to any of the Relevant Events, whether upon reviewing a previous decision or otherwise and whether or not the Relevant Event has been specifically notified by the Contractor under clause 25.2.1.1...".

Relevant Events are specified in clause 25.4 (see clause 1.3). So far as material clause 25.4 provides as follows:

"The following are the Relevant Events referred to in clause 25:

...

.5 compliance with the Architect's instructions

5.1 under clauses... 13.2, 13.3 (except compliance with an Architect's instruction for the expenditure of a provisional sum for defined work)...

...

.6 the Contractor not having received in due time necessary instructions (including those for or in regard to the expenditure of provisional sums), drawings, details or levels from the Architect for which he specifically applied in writing provided that such application was made on a date which having regard to the Completion Date was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same".

Clauses 13.2 and 13.3 deal respectively with variations and the expenditure of provisional sums.

"If the Contractor makes written application to the Architect stating that he has incurred or is likely to incur direct loss and/or expense in the execution of this Contract for which he would not be reimbursed by a payment under any other provision in this Contract ... because the regular progress of the Works or of any part thereof has been or is likely to be materially affected by any one or more of the matters referred to in clause 26.2; and if and as soon as the Architect is of the opinion... that the regular progress of the Works or of any part thereof has been or is likely to be so materially affected as set out in the application of the Contractor then the Architect from time to time thereafter shall ascertain... the amount of such loss and/or expense which has been or is being incurred by the Contractor; provided always that:

1.                  the Contractor's application shall be made as soon as it has become, or should reasonably have become, apparent to him that the regular progress of the Works or of any part thereof has been or was likely to be affected as aforesaid, and

2.                  the Contractor shall in support of his application submitted to the Architect upon request such information as should reasonably enable the Architect to form an opinion as aforesaid, and

3.                  the Contractor shall submit to the Architect... upon request such details of such loss and/or expense as are reasonably necessary for such ascertainment as aforesaid ".

Clause 26.2 provides as follows:

"The following are the matters referred to in clause 26.1:

.1 the Contractor not having received in due time necessary instructions (including those for or in regard to the expenditure of provisional sums), drawings, details or levels from the Architect for which he specifically applied in writing provided that such application was made on a date which having regard to the Completion Date was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same;

...

.7 Architect's instructions issued

under clause 13.2 requiring a Variation or

under clause 13.3 in regard to the expenditure of provisional sums...

...".

Interpretation of clauses 24 and 25: general considerations

"1. ...The general rule is that the main contractor is bound to complete the work by the date for completion stated in the contract. If he fails to do so, he will be liable for liquidated damages to the employer.

2.                  That is subject to the exception that the employer is not entitled to liquidated damages if by his acts or omissions he has prevented the main contractor from completing his work by completion date....

3.                  These general rules may be amended by the express terms of the contract.

4.                  In this case, the express terms of clause 23 of the contract [corresponding to the present clause 25] do affect the general rule. For example, where completion is delayed '(a) by force majeure, or (b) by reason of any exceptionally inclement weather' the architect is bound to make a fair and reasonable extension of time for completion of the work. Without that express provision, the main contractor would be left to take the risk of delay caused by force majeure or exceptionally inclement weather under the general rule".

Although these remarks relate to the 1963 JCT Standard Form, the general approach described that passage is equally applicable to the 1980 version of the contract. It follows that the extension of time provisions such as are found now in clause 25 are of critical importance in ensuring that the contractor is not subjected to liquidated damages for events that are outwith his control.

"A clause giving the employer liquidated damages at so much a week or month which elapses between the date fixed for completion and the actual date for completion is usually coupled, as in the present case, with an extension of time clause. The liquidated damages clause contemplates a failure to complete on time due to the fault of the contractor. It is inserted by the employer for his own protection; for it enables him to recover a fixed sum as compensation for delay instead of facing the difficulty and expense of proving the actual damage which the delay may have caused him. If the failure to complete on time is due to the fault of both the employer and the contractor, in my view the clause does not bite. I cannot see how, in the ordinary course, the employer can insist on compliance with a condition if it is partly his own fault that it cannot be fulfilled.... I consider that unless the contract expresses a contrary intention the employer, in the circumstances postulated, is left to his ordinary remedy; that is to say, to recover such damages as he can prove flow from the contractor's breach. No doubt if the extension of time clause provided for the postponement of the completion date on account of delay caused by some breach of fault on the part of the employer, the position would be different. This would mean that the parties had intended the employer could recover liquidated damages notwithstanding that he was partly to blame for the failure to achieve the completion date. In such a case the architect would extend the date for completion, and the contractor would then be liable to pay liquidated damages for delay as from the extended completion date.

The liquidated damages and extension of time clauses in printed forms of contract must be construed strictly contra proferentem. If the employer wishes to recover liquidated damages for a failure by the contractors to complete on time in spite of the fact that some of the delay is due to the employer's own fault or breach of contract, any extension of time clause should provide, expressly or by necessary inference, for an extension on account of such fault or breach on the part of the employer".

Salmon LJ refers to fault or breach of contract on the part of the employer. Nevertheless, it is clear that his analysis applies equally to cases where the employer, through the contract architect, instructs a variation. A further point is of some significance. It seems implicit in Salmon LJ's analysis that an extension of time should still be available in cases where delay has been caused partly by the fault of the contractor and partly by the fault of the employer; reference is made to the employer's being "partly" to blame for the failure to achieve the completion date. The precise approach that should be followed in cases where delay is caused by concurrent causes, one of which is the fault of the contractor and one of which is not, is a matter of some importance in this case, and I return to it below.

"[I]t is right to examine the underlying contractual purpose of the completion date/extension of time/liquidated damages regime. At the foundation of this code is the obligation of the contractor to complete the works within the contractual period terminating at the completion date and on failure to do so to pay liquidated charges for the period of time by which practical completion exceeds the completion date. But superimposed on this regime is a system of allocation of risk. If events occur which are non-contractor's risk events and those events caused the progress of the works to be delayed, in as much as such delay would otherwise cause the contractor to become liable for liquidated damages or for more liquidated damages, the contract provides for the completion date to be prospectively or, under clause 25.3.3, retrospectively, adjusted in order to reflect the period of delay so caused and thereby reduce pro tanto the amount of liquidated damages payable by the contractor. Likewise, if the works are reduced by an omission instructed by the architect it may be fair and reasonable to reduce the contract period for completion prospectively or retrospectively and therefore to advance the completion date. In view of the inherent difficulties in predicting with precision the impact on the progress of the works of non-contractor's risk events, particularly when operating simultaneously with contractor's risk events the architect is given a power of retrospective adjustment of the completion date. The underlying objective is to arrive at the aggregate period of time within which the contract works as ultimately defined ought to have been completed having regard to the incidence of non-contractor's risk events and to calculate the excess time if any, over that period, which the contractor took to complete the works. In essence, the architect is concerned to arrive at an aggregate period for completion of the contractual works, having regard to the occurrence of non-contractor's risk events and to calculate the extent to which the completion of the works has exceeded that period".

A further issue arose in the same case, namely whether in fixing a the new completion date under clause 25 the architect should ignore the previous completion date and start his assessment of the extension of time from the date when the variation instruction was given, or should start with the existing completion date and postpone it to the extent considered fair and reasonable having regard to the delay caused by the requirement to execute the variation instructions. Colman J. favoured the latter approach (described as a "net" method). He said (at page 29):

"[O]ne again returns to the purpose of the architect's powers under clause 25. He looks back after the most recently-fixed completion date and, under clause 25.3.3, perhaps after practical completion, assesses the extent to which the period of contract time available for completion ought to be extended or reduced having regard to the incidence of the relevant events. His yardstick is what is fair and reasonable. For this purpose he will take into account amongst other factors the effect that the relevant event had on the progress of the works. Did it bring the progress of the works to a standstill? Or did it merely slow down the progress of the works? The function which he performs under clause 25.3.3 must as a matter of construction be in substance exactly analogous to that which he performs under clause 25.3.1. The difference is that under the former clause he does it after the completion date and not before it. But in both cases his objective must be the same: to assess whether any of the relevant events has caused delayed to the progress of the works and, if so, how much. He must then apply the result of his assessment of the amount of delay caused by the relevant events by extending the contract period for completion of the works by a like amount and this he does by means of postponing the completion date.

It will be perfectly obvious that unless the amount of time by which he postpones the completion date corresponds with the amount of delay time caused by the relevant events, the contractor will become potentially or actually liable for an amount of liquidated damages commensurate with a period which does not correspond with the amount of delay beyond the previously fixed completion date attributable to events of which he takes the risk under the contract".

"13. [I]t is agreed that if there are two concurrent causes of delay, one of which is a relevant event, and the other is not, then the contractor is entitled to an extension of time for the period of delay caused by the relevant event notwithstanding the concurrent effect of the other event. Thus, to take a simple example, if no work is possible on a site for a week not only because of exceptionally inclement weather (a relevant event), but also because the contractor has a shortage of labour (not a relevant event), and if the failure to work during that week is likely to delay the works beyond the completion date by one week, then if he considers it fair and reasonable to do so, the architect is required to grant an extension of time of one week. He cannot refuse to do so on the grounds that the delay would have occurred in any event by reason of the shortage of labour.

...

15 It seems to me that it is a question of fact in any given case whether a relevant event has caused or is likely to caused delay to the works beyond the completion date in the sense described by Colman J. in the Balfour Beatty case. In the present case, the [employer] has... both a negative and a positive defence to the [extension of time] claim. The negative defence amounts to saying that the variations and late information etc relied on by the claimant did not cause any delay because the activities were not on the critical path, and on that account did not cause delay. The positive defence is that the true cause of the delay was other matters, which were not relevant events, and for which the contractor was responsible. In my view the respondent is entitled to advance these other matters by way of defence to the [extension of time] claim. It is entitled to say (a) the alleged relevant event was not likely to or did not cause delay e.g. because the items of work affected were not on the critical path, and (b) the true cause of the admitted delay in respect of which the claim for an extension of time is advanced was something else. The positive case in (b) supports and fortifies the denial in (a). The respondent could limit its defence to the claim by relying on (a), but in my view there is nothing in cl 25 which obliges it to do so. Likewise, when considering the matter under the contract, the architect may feel that he can decide the issue on a limited basis, or he may feel that he needs to go further, and consider whether a provisional view reached on the basis of one set of facts is supported by findings on other issues. It is impossible to lay down hard and fast rules. In my judgment, it is incorrect to say that, as a matter of construction of clause 25, when deciding whether a relevant event is likely to cause or has caused delay, the architect may not consider the impact on progress and completion of other events".

"The sole remaining matter is that of the soundness of the ground on which the arbitrator in fact rejected the defence of prevention [that is, acts of the employer that prevent the contractor from completing on time]. He evidently considered that where acts or omissions of a proprietor do in fact substantially delay completion, the proprietor nonetheless cannot be sent to have prevented the contractor from completing by the relevant date unless the contractor would have been able to complete by that date had it not been for the supposed prevention.... But it has been accepted for more than one hundred years that this is not the law. The cases are all one way".

Cases were then cited from Australia, England, New Zealand and Canada; these included Wells. In relation to Wells, Brooking J. said (at 399):

"The principle of the decision is not as clear as one would wish, but appears to be that if the supposed prevention was such as would in ordinary circumstances have made it impossible for the contractor to complete in time, then prevention has in law occurred, notwithstanding that the contractor may in fact have disabled himself by his own delays from completing by the due date".

"It is well settled that the failure of a contractor to prosecute the contract work with the efficiency and expedition requisite for its completion within the time specified by the contract does not, in and of itself, disentitle the contractor to extensions of time for such parts of the ultimate delay in completion as are attributable to events that are themselves excusable, as defined in [the relevant extension of time clause, corresponding to clause 25]. Where a contractor finishes late partly because of a cause that is excusable under this provision and partly because of a cause that is not, it is the duty of the contracting officer to make, if at all feasible, a fair apportionment of the extent to which completion of the job was delayed by each of the two causes, and to grant an extension of time commensurate with his determination of the extent to which the failure to finish on time was attributable to the excusable one. Accordingly, if a event that would constitute a excusable cause of delay in fact occurs, and if that event in fact delays the progress of the work as a whole, the contractor is entitled to an extension of time for so much of the ultimate delay in completion as was the result or consequence of that event, notwithstanding that the progress of the work may also have been slowed down or halted by a want of diligence, lack of planning, or some other inexcusable omission on the part of the contractor".

This approach recognizes the fact that culpable and non-culpable causes of delay will frequently coexist and interact, and permits the contracting officer, equivalent to the architect under the JCT Forms, to apportion the delay between the culpable and non-culpable causes. That seems to me to be the only way in which a fair result can be achieved in such cases, and in my opinion such an approach is contemplated by the wording of clause 25. I should add that the decision of the Board of Contract Appeals in Chas. I. Cunningham Co. was followed in Sun Shipbuilding & Drydock Co., ANBCA 11300, 68-1 BCA (CCH) P7054 (1968).

The time for issuing instructions

"What is a reasonable time does not depend solely upon the convenience and financial interests of the [contractors]. No doubt it is in their interest to have every detail cut and dried on the day the contract is signed, but the contract does not contemplate that. It contemplates further details and instructions being provided, and the engineer is to have a time to provide them which is reasonable having regard to the point of view of him and his staff and the point of view of the [employer], as well as the point of view of the contractors.

In determining what is a reasonable time as respects any particular details and instructions, factors which must obviously be born in mind are such matters as the order in which the engineer has determined the works shall be carried out..., whether requests for particular details or instructions have been made by the contractors, whether the instructions relate to a variation of the contract which the engineer is entitled to make from time to time during the execution of the contract, or whether they relate to part of the original works, and also the time, including any extension of time, within which the contractors are contractually bound to complete the works".

The first of the specific factors mentioned by Diplock J. is not strictly relevant to the present case, since under the parties' contract the architect is not given power to determine the order in which the works should be carried out. Instead, the contractor determines the programme. Nevertheless, the contractor's programme is clearly relevant in determining what is a reasonable time for giving any particular instruction. The other three factors are all relevant. In relation to the last, the time within which the contractor is contractually bound to complete the works, a difference arose between the parties. Counsel for the defender submitted that the contractual completion date, allowing for any extension, must always set a criterion against which the timing of instructions should be judged. Counsel for the pursuers, by contrast, submitted that, where the contractor's progress was such that he clearly would not complete by the contractual completion date, it was sufficient that the instructions were in sufficient time to meet his actual progress. In my opinion the current contractual completion date must normally be relevant, for two reasons. First, there is the possibility that the contractor will take special measures to accelerate progress. That is no doubt subject to an exception when the Completion Date is past, but in that event it may be that instructions should have been given prior to the Completion Date. The second reason is more general: the contractual provisions expressly envisage that information will be provided by the architect to the contractor to enable completion in accordance with the contractual Conditions (clause 5.4), and those conditions include the important obligation (clause 23) to proceed regularly and diligently with the works and to complete the works on or before the Completion Date. Nevertheless, all of the factors mentioned by Diplock J., subject to the qualification mentioned above in relation to the first, are potentially relevant in determining what is a reasonable time for the provision of information. Ultimately that question is a question of fact, and will depend upon the whole circumstances of the particular case.

Competing approaches of parties' expert witnesses

Mr Whitaker

Mr Lowe

(i)                  Line 8: AB Construct ground floor slab. The bar representing this activity was not split to reflect that the ground floor slab was poured in two pours. In cross-examination, Mr Lowe accepted that this would require the start of the activity to be linked to an earlier activity; otherwise activities that were critical would become non-critical on rescheduling, and the critical path might be altered.

(ii)                Line 12: AB construct 2nd floor to 3rd floor. This activity was not shown as critical on Mr Lowe's programme, but in cross-examination he accepted that it should have been shown as critical. Mr Lowe further accepted that the link shown coming in to the activity from line 10 was erroneous, as it omitted a floor of the building. Finally, Mr Lowe accepted that a link was missing from his programme; he stated that there should be a start-start (SS) link from line 11 to line 12.

(iii)               Line 13: AB construct 3rd floor to 4th floor. Mr Lowe accepted in cross-examination that the link from line 11 to line 13 (13FS2d, signifying a finish-start link with a time lag of two days) was erroneous; once again a floor was omitted. Mr Lowe further accepted that it was wrong to indicate that the start of the activity at line 13 depended upon the finish of the activity at line 11; instead, the link should have been a SS link from line 12 to line 13.

(iv)              Line 14: AB construct 4th floor to 5th floor. This activity is shown as non-critical in Mr Lowe's programme, but in cross-examination he accepted that this was wrong and that the activity should be shown as critical. Mr Lowe further accepted that the link to the start of line 14 from the end of line 12 (14FS6d) was incorrect; instead the programme should have shown a SS link from line 13 to line 14.

(v)                Line 15: AB construct 5th floor to 6th floor. Mr Lowe accepted in cross-examination that the link to the start of line 15 from the end of line 13 (15FS1d) was incorrect, and it was also incorrect to state, as the programme indicated, that the criticality of the activity at line 15 depended on the activity at line 13. The link should rather have been a SS link from line 14 to line 15.

(vi)              Line 15: AB construct 5th floor to 6th floor. A central feature of Mr Lowe's evidence was the view that neither the roof steelwork nor the roof cladding was on the critical path. The first link out of line 15 was to the reinforced concrete stair flights at line 38 (38FF1d), that link being shown as critical. Work on the reinforced concrete stair flights is shown as finishing on 19 August 1998, at the level from the 4th to the 5th floor; that accords with the Clerk of Works' diary (No 6/18 of process). At line 38 of Mr Lowe's programme the first link onwards is 52FS-3d (finish to start less three days); the activity at line 52 is stud partitioning and dry linings. That link is critical, as both of the activities at lines 38 and 52 are critical. The stud partitioning and dry lining work is recorded as having started on 17 August 1998 in Mr Lowe's programme and in the parties' joint minute. This work started at 1st floor level according to the Clerk of Works' diary. In cross-examination Mr Lowe accepted that there was no technical or construction relationship between the work on the stair flights at the 4th to 5th floor level and the start of the stud partitioning and dry lining work at 1st floor level. On that basis, the critical link between lines 38 and 52 does not appear justified. In any event, it is difficult to see why there should be any such relationship, as a matter of common sense. Mr Whitaker's evidence was to that effect, as was that of Mr Cornish.

(vii)             Line 49: AB load out plant room equipment. The plant room was situated at roof level, under the cladding. The last part of this activity was the hoisting in of the chillers, which took place on 30 November 1998. The last successor link from line 49 identified in Mr Lowe's programme is 20FS19d, which is shown as a critical link. Line 20 relates to as-built roof cladding. The link from line 49 leads to a section of line 20, shown as critical, marked "Steel trim". The logic of the programme accordingly indicated that the contractor required to wait 19 days from the chillers' being hoisted into the plant room before the steel trimming work could be done. The steel trimming work identified at line 20 in fact took place on 11 January 1999; that work was to the smoke vents (Clerk of Works' diary, No 6/19 of process, 11 January 1999). The smoke vents are situated at each end of the building, whereas the chiller compound is in the middle. When he was cross-examined, Mr Lowe accepted that there was no "reasonably practical relationship" between the hoisting in of the chillers and the steel trimming work on the smoke vents. That link accordingly appears to be erroneous. Mr Lowe accepted that, if that link were to be deleted and the programme rescheduled, items which were shown as critical would become non-critical (day 25, 10.29). That of itself appears to cast considerable doubt on the accuracy of Mr Lowe's programme.

(viii)           Line 20: AB roof cladding. In Mr Lowe's programme this work is shown in a number of sections, the last of which refers to "penetrations". The final successor link from this line is to snagging, shown as 60FS0d. This link is shown as critical. On the programme that critical link is shown to snagging taking place on or about 22 February 1999. According to the Clerk of Works' diary, snagging at that time was to the bedrooms; Mr Lowe accepted that snagging in the bedrooms had been going on for some time before that (day 24, 3.18). On this basis there does not appear to be a relationship between the end of the work on roof penetrations and the snagging going on at that time. Mr Lowe stated that the completion of the roof level penetrations was coincidental with the time at which a sample room had achieved a satisfactory state, and referred to pipe work through the building and the testing of the soil stacks to justify a link. He accepted, however, that work to the soil stacks would only have affected snagging if the stacks had failed their test, which they did not. Consequently the logic link does not appear to be based in fact. Moreover, in Mr Lowe's programme there is no logic link from the soil stacks at line 43 to snagging at line 60. It seems, therefore, that this link was not justified. In his evidence Mr Whitaker denied that there was any such link.

(ix)              Line 50: AB plant room installation. A link joins line 50 to soil stacks at line 43, the link being 50FS-1d. When cross-examined, Mr Lowe accepted that it was probably not the case that the contractor could only start installing plant in the plant room one day before the completion of the soil stacks. If that is so, the link would be incorrect.

(x)                Line 20: AB roof cladding. The only link shown from this activity to any mechanical and electrical activity is to soil stacks at line 43 (identified as 43FS9d). Mr Lowe considered that link to be critical, but he thought that the only mechanical and electrical activity that depended on the roof cladding was the testing of the soil stacks. Mr Lowe further stated (day 24, 3.45) that there was no practical relationship between the roof cladding and the second fix mechanical and electrical work. He justified that position on the basis that the defenders had installed temporary covers at 4th and 6th floor level over the 18 voids created by the risers that run up through the building. He conceded, however, that once the plant and equipment were in place at the plant room level a roof would be necessary in order to take the covers off the plant and equipment and to allow connections to be made down through the building (day 25, 10.11). That would require the temporary covers to be removed. On this basis, it seems that the roof must be critical, at least once the plant was put in place and the contractor wished to connect it to the services running through the building. This is a point of some importance, and I return to it at paragraph [38].

(xi)              Line 17: skim plaster finish to bedroom walls and ceilings. The only successor link is to line 57, decoration, and is shown as 57FS1d. Both of these activities are shown as critical in Mr Lowe's programme, and Mr Lowe accepted that the logic link between them is critical. In cross-examination, however, he conceded that this critical link was wrong (day 25, 10.36). He accepted that the link should have been start to start rather than finish to start; it is obvious why this is so, since decoration could clearly begin as soon as the earlier parts of the skim plaster had dried. Mr Lowe was then asked what would happen if the erroneous link were deleted, the correct link inserted and the programme rescheduled; he believed that the skim plaster activity at line 17 became non-critical. Mr Whitaker specifically disagreed with Mr Lowe's programme at this point, as did Mr Cornish.

(xii)             Line 54: ceramic tiling. Mr Lowe records the finish date for this activity as being 11 December 1998. One of the successor links is to snagging, at line 60; this is stated as 60FS-5d. Mr Lowe stated that he had inserted this link because there was nothing following ceramic tiling that needed to be done apart from snagging. In cross-examination it was suggested to Mr Lowe that this was incorrect because it did not take account of work that required to be done in relation to the en suite fittings. Mr Lowe stated that the work on the en suite fittings was part of second fix joinery in his programme, at line 56. Nevertheless, Mr Lowe showed second fix joinery finishing on 4 March 1999, but according to the Clerk of Works' diary work on the en suite fittings continued until 10 March 1999. That suggests that the programme is not correct. Furthermore, in cross-examination Mr Lowe accepted that there was a relationship between the ceramic tiling work and the work on the en suite fittings, as those fittings were attached to the ceramic tiling, with the result that the tiling had to be in place first. Mr Lowe did not, however, show any logic link between the ceramic tiling, shown as a critical activity, and second fix joinery, where the en suite fitting work was reflected. That appears to be a significant link that is missing from the programme. I should add that both Mr Whitaker and Mr Cornish rejected the link shown between line 54 and line 60 in Mr Lowe's programme.

(xiii)           Line 52: AB stud partitions and dry linings. Mr Lowe's programme does not show any link from this activity to any mechanical and electrical activity. He stated in evidence, however, that in the area between the bedrooms and the bathrooms the stud partition walls would be erected with the second fix electrical and plumbing work within them; metal studs and one side of the plasterboard would be erected, followed by the electrical and plumbing work, followed by the second side of plasterboard. On this basis Mr Lowe accepted (day 26, 10.22) that there was a relationship between the stud partitions and second fix wiring, shown at line 44. No such link is reflected in Mr Lowe's programme, although stud partitions and dry linings are shown as a critical activity.

(xiv)           Line 30: install temporary windows -- timber frame and polythene. In this case a link is shown to first fix joinery, at line 53, in the form 53SS9D; that indicates that first fix joinery cannot start until nine days after the start of the installation of temporary windows and polythene sheets. That link is between two critical activities, and should therefore be regarded as critical. Mr Cornish, however, considered that little work was involved in first fix joinery, and that such work as there was not dependent upon the temporary windows; thus there was no relationship between the two. Mr Whitaker supported this view; first fix joinery referred to work in the bathroom area, but this was not near the outer walls of the building and was therefore not dependent upon the temporary windows. On this basis it appears that the link shown by Mr Lowe is erroneous. Mr Lowe further showed a link between temporary windows at line 30 and ceramic tiling at line 54, in the form 54SS12d. Both of these activities are shown as critical. Mr Whitaker stated that, before any tiling could be done, the contractor required first to erect the stud partition walls on which the tiling was placed. If there were any link with the temporary windows, accordingly, it would be expected that this would run through the stud partitioning. No such link was shown, however, and in fact the stud partitioning work started on 17 August 1998, prior to the start of the installation of the temporary windows on 8 September 1998.

(xv)            Line 19: grout in steelwork. A successor link is shown to roof cladding, at line 20, in the form 20FS-10d. When asked about this link, Mr Whitaker stated that the logic link was erroneous because the roof cladding work was not dependent upon the grouting of the steelwork, and the work in fact started one week before the grouting of the steelwork. On Mr Lowe's programme roof cladding is shown starting on 14 September 1998, one week before the start of grouting to the steelwork.

Conclusion

Gas venting

"Based upon the information provided by you in your letters of 25 August 1998 and 31 March 1998, the Architect's Instruction issued to you and our projects records, we estimate the effect on the Contract Completion Date to be as follows:

1.      Compliance with Architect's Instruction No. 1 of 27 January 1998 discharging the provisional sum for gas venting works is a Relevant Event of the type described in clause 25.4.5.1.

2.      The Relevant Event caused delay to the works for a period of 2 weeks in the timing of the achievement of the critical first floor slab consequent upon the revised erection sequence of the lower structure".

The letter continued by stating that RMJM had been advised that, by direct agreement with the pursuers, the defenders had undertaken to absorb this delay; the result was that the architect decided that no extension of time should be granted. I should state that no evidence was led before the court to suggest that any agreement to absorb such delay had been concluded. The pursuers aver that such an undertaking had been given by Mr Dibben at a meeting held on 8 April 1998. The only witness who gave evidence on the matter was Mr Dibben (day 9, 10.50-11.35). His evidence about the meeting was as follows. He had stated that the gas venting membrane was additional work and central to the critical path. He had further said that the pursuers had nevertheless taken some accelerated measures. The pursuers' Mr Sandy Orr had stated, however, that he was not prepared to accept that at that stage of the contract the defenders could be incurring a potential delay. Mr Orr said that he did not see this as the action of a partnering or team contractor; he had said something like "You're not getting an extension of time out of me". Mr Dibben was clear that he did not agree to undertake to absorb any of the delay. No such undertaking had been recorded in the minutes of the meeting. Mr Dibben was referred to the letter of 9 October 1998 and stated that he had been "flabbergasted" at the suggestion of an undertaking to absorb delay. On this matter I found Mr Dibben's evidence to be both credible and reliable, and I accept it. Moreover, it seems to me that if any such undertaking had been given it was a serious matter, and I would certainly have expected to find it recorded in the minutes of the meeting. It was not so recorded, however. On this basis I conclude that no such undertaking was given. Subject to that, RMJM clearly considered that the defenders had been delayed by the instruction relating to the gas venting scheme. Furthermore, they did not criticize the defenders' decision to alter their intended sequence of construction.

Roof steelwork and cladding

"To be read with Preliminaries/General conditions.

The Contractor is invited to offer alternative proposals for this specification. Any alternative must achieve the technical and visual performance inherent in this specification and relating drawings.

In any event the Contractor or specialist will be required to assume full responsibility for the design, construction and warranty of the roof enclosure".

The reference in that provision to alternative proposals is an invitation to the contractor to provide Value Engineering ("VE") proposals in relation to specified parts of the Works. The intention was that the contractor should put forward alternative systems of construction which would produce cost savings; these would obviously be reflected in the Contract Sum. In the course of the tendering process the defenders put forward a list of such proposals (No 7/17 of process); these included the system of roof covering, where a proposal was made to use a built up roof covering system rather than the proprietary Stramit system. The proposal relating to the roof covering system was VE Proposal 13; it provided: "Change specification of roof cladding to built-up system". A saving of £5,000 was placed against this item. In total 32 VE proposals were made, which might result in a total saving of £128,000.

Contractual status of VE Proposal 13

"The Employer shall pay to the Contractor in consideration of the carrying out and completion of the Works the guaranteed maximum price comprising, the Contract Sum or such other sum as shall become payable hereunder at the time and in the manner specified in the Conditions".

Clause 14.2 indicates the significance of the guaranteed maximum price:

"Notwithstanding anything contained in the Contract whether express or implied and/or any claim at law the Employer's entire aggregate liability for any payment to the Contractor of any sum of whatsoever in nature and howsoever arising for the carrying out and completion of the Works shall be limited to and in no circumstances exceed the guaranteed maximum price comprised in the Contract Sum save only where the Conditions expressly provide for any increase in the Contract Sum".

Clause 14.3 then provides:

"The quantity and quality of work included in the Contract Sum shall be deemed to be that which is required to be carried out and completed in compliance with the Contract Documents".

That indicates a clear relationship between the work that is to be carried out under the Contract and the Contract Sum; I consider this relationship to be important for reasons that are discussed further below. Clause 14.5 provides for adjustment of the Guaranteed Maximum Price Contract Sum in respect of three matters: provisional sums; contingencies and day work; and unforeseen or unknown ground conditions. No mention is made there of Value Engineering savings. Clause 14.6 indicates the amount of the guaranteed maximum price:

"The Guaranteed Maximum Price Contract Sum is £4,959,578 comprising all adjustments made for Value Engineering savings and the like and is as set out in Appendix E hereto".

Clause 14.7 deals with VE savings; it provides:

"The Value Engineering savings which form part of the Contract Sum are defined and set out in Appendix F hereto".

Finally, clause 14.8 provides that any Value Engineering savings other than those stipulated in clause 14.7 are to be shared between the parties in an agreed manner.

[55] VE proposal 13 is specified in Appendix F as follows:

"Omit stramit roofing as described in specification Clause H31:140 and substitute with a built up roof cladding system as follows: --

·        Topsheet in plastisol coated steel outer sheet.

·        Breather membrane.

·        Fibre glass quilt insulation 100 mm thick.

·        White enamel faced under liner sheet with taped joints fixed with spacers to purlins.

Roof pitch will need to be a minimum of 6°".

The saving brought out in respect of the proposal is £5,000.

History of instructions relating to the roof steelwork and cladding

"VE Item No 13 - Change roof cladding specification to a built up system.

Agreed. SCL [the defenders] to confirm that it does not affect the lightning protection. SCL to pick up any changes in the roof pitch on the fabricators drawings".

Mr Dibben stated that, as recorded in the minutes, it was agreed that the defenders should proceed with VE Proposal 13. Mr Cornish also stated in evidence that that was his understanding of the position (day 2, 3.16). In the minutes no indication is given that any further details or proposals were required from the defenders in respect of VE Proposal 13; on the basis of the terms of the minutes and Mr Dibben's evidence, I conclude that at the VE meeting it was decided that the Proposal 13 was to go ahead. The minute further states, at paragraph 3.0, that RMJM were to issue Architect's Instructions as appropriate to cover all of the items discussed.

"I have recommended to First Stop Hotels [the pursuers] that we retain the use of speedeck to the main roof. I will advise you of an instruction as soon as I can".

In relation to that letter, Mr Cornish commented (day 2, 3.32) stated that his reaction was "exasperation". He stated that the situation was that the defenders had no direction as to which way to go, because RMJM had not made their mind up. The next communication from RMJM to the defenders was a fax dated 29 June (No 7/26 of process). This stated

"I confirm my telephone call of Friday 26 June advising that First Stop Hotels have agreed that the roof specification as currently instructed (Stramit Speedeck) is not to be replaced by any alternative".

Application of clause 25 to roof of steelwork and cladding

Consequences of late instruction

1.      Mr Lowe relied first on the fact that the fire escape stairs above sixth floor level had not been constructed. In my opinion this point is not relevant. Mr Whitaker stated that it was obvious that, if the roof steelwork had been available any earlier, the concrete stairs could easily have been finished (day 13, 2.10). Mr Cornish gave evidence that the fire escape stairs were built off the critical path (day 5, 10.52). Moreover, in cross-examination (day 25, 11.16), Mr Lowe accepted that, if the stairs had not been completed, the defenders could have started the steelwork in a different area and come back to the area immediately adjacent to the fire escape stairs at the end. For these reasons I do not think that this point is established.

2.      Mr Lowe further relied on the construction of the lift shaft above sixth floor level, which was not completed until August. Mr Cornish gave evidence that, if there had been a problem with this matter, he would have ensured that propping was used to take the load from the steelwork, so that the lift pit could be cast at a later date (day 5, 10.55). Mr Whitaker agreed with that suggestion (day 13, 2.23). Mr Lowe disagreed with these views. On this matter I prefer Mr Cornish, who was actually on site at the material time, and Mr Whitaker. I accordingly conclude that this point is not established.

3.      Mr Lowe relied on the fact that the upstand walls around the perimeter of the sixth floor had not been constructed; these were required to bear the weight of the structural steel in the roof. Mr Lowe relied in particular on the fact that the upstand walls had not been completed until 28 August 1998. In this connection, two points are significant. First, the Clerk of Works' diary indicates that the only walls that were not constructed on 28 August were those around the chiller area; it seems clear that the walls around the perimeter were constructed earlier. Secondly, Mr Lowe's evidence was based on the fact that the walls were only completed on 28 August. Mr Cornish, however, gave evidence (day 3, 12.10) that the defenders only needed one third of the upstand walls to be constructed to allow the erection of the structural steelwork to begin. He further stated that he would have taken any opportunity to construct the steelwork earlier if that had been possible, and he rejected the suggestion that the upstand walls had been responsible for the late erection of the steelwork. Mr Whitaker (No 7/8 of process, paragraph 2.49) stated that the perimeter walls on which the steelwork was founded were all completed by 20 August. He further stated that steelwork erection could have started before all of the perimeter beams were cast so long as matching beams were built on either side. On that basis Mr Whitaker thought that steel erection could have started as early as 10 August were it not for the delay in fabrication caused by the late issue of the architect's instruction to use a Stramit system. Mr Whitaker spoke further to this matter in evidence (day 13, 2.29; day 15, 2.51). Furthermore, the architect stated in a letter to the defenders dated 19 October 1998 (No 7/157 of process) that "Completion of the reinforced concrete edge beams sufficient to receive the Roof Steelwork was achieved on 12^th August 1998". Mr Whitaker derived further support for his view that the upstand beams were not critical from the fact that the number of carpenters and steelfixers engaged on the project reduced steadily during the last four weeks of construction of the reinforced concrete frame (3 August-28 August). If the upstand beams had been critical, he would have expected that the numbers of men employed in those trades would have been maintained in order to ensure completion of the reinforced concrete works as soon as possible (No 7/8 of process, paragraph 2.50). I accept Mr Whitaker's evidence on these matters. I accordingly consider it clear that the roof steelwork could have started well before completion of the perimeter walls; I am further of opinion that the perimeter walls were completed on 12 August. On this basis I conclude that there is no substance in the argument that steelwork erection was delayed by the completion of the perimeter walls.

4.      The fourth point made by Mr Lowe was that the roof steelwork could not start earlier because falsework and formwork used in constructing the sixth floor slab required to be removed from beneath the sixth floor. Mr Whitaker's view was that it was not necessary to remove the falsework and formwork from below sixth floor level to allow steel erection at that level (day 13, 2.34). Mr Cornish (day 3, 12.20) stated that the erection of steelwork could have proceed despite the falsework and formwork below sixth floor level. The falsework and formwork could have been removed in three ways; the tables could have been stripped in situ at fifth floor level; the tables could have been removed from the building by crane to Church Street, a nearby street, and dismantled there; or the tables could have been removed intact, placed on a flat bed lorry and driven to a remote part of the site for dismantling. In my opinion it is clear that the existence of the falsework and formwork at fifth floor level would not have prevented the construction of the steelwork. I further conclude that it could have been removed using one or other of the methods described by Mr Cornish.

5.      Mr Lowe's fifth point was that the roof space at sixth floor level was used by the reinforced concrete subcontractor, E P Rothwell & Sons, to strip formwork and formwork tables until the steel arrived on site. Mr Cornish gave evidence that Rothwell simply took advantage of the roof space because it was known that the steel would not be available until a later date (day 3, 12.16). He further stated that, if it had been necessary, the falsework and formwork could have been dismantled in any of the three ways described in paragraph 4 above. Mr Whitaker's evidence was broadly in agreement with Mr Cornish. I accept Mr Cornish's evidence on this matter, and I conclude that this point is not established.

6.      The sixth argument relied on by Mr Lowe was that, for the steel erectors to start work, it was necessary that an access scaffold should be constructed to provide a safe system of working for them; this would include a cantilever for the roof overhang. Mr Cornish gave evidence that the access scaffold was built for the cladding contractor (day 5, 11.04), and in particular to enable the construction of louvres. The steel erectors were permitted to use it, but it was not for their benefit. Without it, they could have proceeded with steel erection using harnesses, lanyards or roof mounted cherry pickers; that would have been a safe method of working. Mr Whitaker agreed with that evidence (day 13, 2.40). Mr Lowe disagreed with the position taken by Mr Cornish. He accepted, however, that cherry pickers could be used if they could be put in place (day 25, 12.15). On this .I prefer the evidence of Mr Cornish and Mr Whitaker. Mr Cornish was on site at the relevant time, and I find that he gave his evidence by reference to the actual conditions that he experienced. I am satisfied that one of the methods that he suggested could have been used without difficulty.

7.      Mr Lowe's final point related to the provision of suitable cranage for the steel erection. Mr Lowe suggested that the tower crane on site could not service both the concrete walls at roof level and the steelwork at the same level. Mr Cornish gave evidence that the steel erectors would have been given preference over any other trades; in any event the crane could have been used before 8 a.m. or after 4 p.m. (day 5, 11.07). In addition, Mr Lowe (day 25, 12.43) accepted that a concrete pump could have been used for the concreting works. On this matter I accept the evidence of Mr Cornish, and I find that the point has not been established

Extension of time

"Having carefully considered all of the above facts, I am of the opinion that the roof steelwork and the roof cladding were critical to the completion of the Works. I am further of the opinion that these critical tasks commenced 5 weeks later than planned and that being critical tasks this caused a five week delay to completion of the whole of the Works".

Mr Whitaker developed this matter at paragraph 2.53. He was of opinion that the defenders were delayed in the completion of the Works until 1 March 1999 as a result of the delay in issuing an instruction relating to the roof steelwork. He further considered that the delay was caused entirely by the lateness of the instruction to vary the roof coverings; it did not result from the content of the work instructed. In support of this proposition Mr Whitaker produced a short as-built programme (at paragraph 2.53) which indicated that the duration of the installation of the roof steelwork and roof coverings was in fact exactly the same as the duration planned by the defenders, 181 days. I accept Mr Whitaker's evidence on these matters. I find that the completion of the Works was delayed by five weeks as a result of the late instruction relating to the late instruction relating to the roof cladding system. I further find that the delay was caused by the lateness of the instruction and not by its content. Finally, I should record that it is conceded by the defenders that the 3 1/2 week delay resulting from the instruction of the gas venting scheme is contemporaneous with the five week delay resulting from the late instruction of the system of roof cladding.

Instructions following replacement of RMJM by Keppie

"[The defenders] noted the [pursuers'] change to the Design Team and felt that their concerns at his change so late in the contract should be recorded. They would of course do their best to assist the new design team members".

In his evidence Mr Cornish stated that he wanted the defenders' concerns to be recorded because a lot of unresolved issues existed and a new design team would be coming on to the project without any initial knowledge of it; indeed they did not even have the project drawings and documentation (day 3, 1.51 onwards). Mr Cornish added that it was obvious at that site meeting that the new design team knew nothing about the job; they had asked the defenders to photocopy all the documentation and courier it to them; the defenders did that. Neither Mr Cornish nor Mr Whitaker had ever encountered such a situation previously in their careers. At the site meeting held on 2 December the defenders stated that they continued to be 5 1/2 weeks behind programme and had issued a 57-week target programme. Mr Foley agreed that the Works were 5 1/2-6 weeks behind programme.

1. Final fix items to en suites

"On 13^th January 1999 Keppie Architects wrote to SCL instructing us to order the following:

i.                     Toilet roll holder - Anticipated delivery 10 days = due 23^rd January 1999.

ii.                   Towel rack - Anticipated delivery 21 days = due 3^rd February 1999.

iii.                  Grab bar - Anticipated delivery 21 days = due 3^rd February 1999.

iv.                 Robe hook - Anticipated delivery 10 days = due 23^rd January 1999.

v.                   Glass shelf - Anticipated delivery 10 days = due 23^rd January 1999.

vi.                 Shaving mirror - No delivery period quoted.

On 22^nd January 1998 Architects issued further instructions, these included updated quotations stating that all items except the shaving mirror are subject to a 21 day lead-in period.

On 3^rd February 1999 we received further verbal instructions from Keppie Architects to fit 2 soap dispensers to each en-suite. These were delivered in due time.

The shaving mirrors were delivered in good time. However, all other items were not delivered until 9^th February 1999

The further delaying factor was that delivery of items i, iv and v was received 17 days later than quoted by Keppie in their letter of 13^th January 1999 and delivery of items ii and iii was 6 days later than quoted by Keppie in their letter of 13^th January 1999.

Further to the delayed deliveries, revised instructions were issued regarding fixing of the items. Thompson MacLeod confirmed fixing positions of items ii, iii, iv and v and soap dispensers on 9^th February 99. The other items started on 10^th February 1999.

Thompson MacLeod subsequently gave verbal instructions changing heights for the toilet roll holder on 12^th February 1999. This was confirmed by facsimile on 16^th February 1999.

The security screws supplied for the shaving mirrors were unsuitable for the locations in the en-suites. SCL had to order new security screws for all the shaving mirrors. These were delivered on 16^th February 1999.

On the 16^th February 1999 we were able to start revisiting all areas to fix items i and vi.

As previously mentioned, fixing of item v (glass shelf) started on 10^th February 1999. It became immediately apparent that the shelf specified by Thompson McLeod and Keppie was too large to fit in the en-suite bathroom. SCL immediately sent a facsimile to their shelf manufacturer to try and resolve the problem, we also investigate[d] sourcing shelves from an alternative supplier. Following discussions Thompson MacLeod issued their revised requirements on 15^th February 1999. At the time of writing the new shelves have not been delivered.

The installation of all the available en-suite fittings was completed on 26^th February 1999. Fitting of the outstanding glass shelves will be carried out within one week of delivery.

We anticipate the shelves will be delivered before 8^th March 1999, therefore installation should be complete by 15^th March 1999".

Mr Cornish, who was the author of that letter, spoke to its contents (day 3, 3.18). On the basis of his evidence, I am satisfied that the statements of fact in the letter are substantially accurate.

Pursuers' criticism of defenders' case on instructions following Keppie's appointment

2. Bedhead lighting

"These are items that cannot be deferred any longer. Electrically, we cannot of course complete bedrooms without bedhead lights. (Work commences 11/1/99). Please instruct accordingly".

The defenders received an Architect's Instruction in relation to the bedhead lighting on 24 December 1999 (noted in No 7/55 of process; dealt with by Mr Cornish, day 3, 3.42). The instruction was to supply and install the lighting. Events thereafter are set out in the defenders' letter to Keppie dated 8 March 1999 (No 7/55 or 7/157 of process); as indicated above in relation to the bathroom fittings, I am satisfied that this letter contains a substantially accurate account of events (on the basis of the evidence of Mr Cornish; day 3, 3.46):

"The bedhead lights were not part of our contract. However, since the bedhead lights are hard wired it is not possible to bring power into the rooms until the bedhead lights are fitted, nor is it possible to test and commission the electrical services.

On 24^th November 1998 we wrote to RMJM asking for the bedhead lights to be issued to us. On November 1998 we wrote to RMJM once again on this subject. Finally we wrote to yourselves on 16^th December 1998 requesting that the bedhead lights were issued to us in order to commence work on 11^th January 1999.

We then received your instruction to supply and fix the bedhead lights on 24^th December 1998. Our purchasing department had already closed for the Christmas shutdown and consequently an order for the lights could not be placed until 4^th January 1999 at the very earliest.

In site meeting No. 12 (6^th January 1999), minute 3.5, Keppie state that the bedhead lights supplier could deliver approx. 50% of the fittings by 20^th January 1999 with the balance by 5^th February 1999 on early receipt of an order.

SCL placed an order for the items on 6^th January 1999.

Deliveries were not made in accordance with the date quoted by Keppie. Actual deliveries were received as follows:

36 No. 26^th January 1999

304 No. 2^nd February 1999

The further delaying factor was that:-

a. 36No. were delivered 6 days later than the dates quoted.

b. 134No. were delivered 13 days later than the dates quoted.

c. 170No. were delivered in accordance with the quoted dates".

The Clerk of Works' report for the week ending 14 February 1999 refers to electrical connection work to the bedroom furniture at fifth floor level; this included the bedhead lighting. The Clerk of Works' diary records electrical connections' being made to the bedroom furniture on 19 February 1999. The Information Required Schedule (No 7/114 of process) dated 26 January 1998, in the section headed "Electrical", stated that the date when information was required was May 1998. In the same document, in the section headed "Finishes", which might be construed as referring to the bedhead lighting, it was indicated that information was required by 10 August 1998.

3. Trouser presses

"The trouser presses were not part of our contract. However, they are wired in and then covered with a duct from the furniture case goods manufacturer. Consequently, the trouser presses are required in order to finish the furniture installation, power up the rooms and test and commission the electrical works.

On 23^rd November 1998 it became apparent that our domestic furniture manufacturer (A. Thomson) had received direct instructions from the interior designer (Thompson MacLeod) to manufacture cable tidy boxes. Consequently SCL were unaware of the size or fixing arrangements of this cable tidy until it was delivered to site.

Our letter dated 30^th November to RMJM confirms that trouser presses need to be delivered floor by floor to our programme.

The programme was confirmed to the client via our fax dated 3^rd December 1998. The first delivery was due during week commencing 11^th January 1999 with further deliveries at weekly intervals.

On 6^th January 1999 the Architect issued a verbal instruction to fit trouser presses.

On 22^nd January 1999 we received 100No. Trouser presses i.e. 7 days later than required.

A sample trouser press was fitted in the mock-up room and the following problems were identified:

a. Cable tidy boxes incorrectly sized.

b. Setting out of trouser press position seemed incorrect and required clarification.

c. Trouser presses were plug in type not hard wired as the client required (the specification was correctly installed with single gang sockets).

These problems were witnessed by Janet Matthews [an operations manager for the pursuers] and communicated to Keppie Architects by fax dated 24^th January 1999 [No 7/58 of process].

On 3^rd February 1999 verbal instructions [confirmed at No 7/59 of process] were issued by Keppie Architects as follows:

a. Fit cable tidy box and decorate.

b. Setting out position clarified.

c. Remove of all single gang plugs and replace with fused spurs.

The further delaying factor was that trouser press installation started on 4^th February 1999, i.e. 20 days later than Shepherd's requirements.

Further to fitting the trouser presses we wrote to yourselves on 16^th February 1999. The trouser presses can not be wired up in accordance with the revised requirements since the skirting trunking is already full of cables. Our letter asks for further directions, however, at the time of writing these have not been received and this work is 'on-stop'. Until instructions are issued fixing of the trouser presses cannot be completed".

The evidence did not disclose precisely when fitting of the trouser presses was completed, but it is clear from the letter that this had not occurred by 8 March 1999. Moreover, in a letter to Keppie dated 11 March 1999 (No 7/150 of process) the defenders stated that no instruction had been received from the architect to resolve the question of the wiring of trouser presses; this related in particular to the question of whether they should be hard wired or fitted in such a way that they plugged into a socket. In that letter the defenders indicated that the work would be completed by 29 March 1999 if the information were made available by 15 March. Despite that, the minutes of the handover meeting held on 29 March 1999 (No 7/61 of process, page 5) record that hardwiring details were still awaited from Blyth & Blyth.

4. Central atrium beam encasement

5. Fibre optic lighting in bar and breakfast bar areas

6. External mounted floodlights

7. Cooling system for the refuse room

8. Trees

9. External render

Delay by defenders: lifts

Delay by defenders: stair balustrades

"[Mr Cornish] advised all concrete in atrium and lift lobby will be skim plastered to remedy inaccuracies in concrete. [Mr Cornish] confirmed angle edge beads will be used to ensure straight, clean edges of concrete".

That work was necessary in order to carry out the work on the stair balustrades and finishes. The relevant architect's instructions (Nos 78 and 105) were issued on 4 September and 14 October 1998. The actual start of work on the stair balustrades occurred on 18 December 1998, and the actual completion date was 12 April 1999 (joint minute).

Clause 13.8

"13.8.1 Where, in the opinion of the Contractor, any instruction, or other item which, in the opinion of the Contractor, constitutes an instruction issued by the Architect, will require an adjustment to the Contract Sum and/or delay the Completion Date, the Contractor shall not execute such instruction (subject to Clause 13.8.4) unless he shall have first submitted to the Architect, in writing, within 10 working days (or within such other period as may be agreed between the Contractor and the Architect[)] of receipt of the instruction, details of:

1. Initial estimate of the adjustment (together with all necessary supporting calculations by reference to the Contract Documents);

2. Initial estimate of the additional resources (if any) required and his method statement for compliance;

3. Initial estimate of the length of any extension of time to which he considers he is entitled under Clause 25 and the new Completion Date (together with all necessary supporting documentation by reference to the Master Programme);

4. Initial estimate of the amount of any direct loss and/or expense to which he may be entitled under Clause 26; and

5. Any such other information as the Architect may reasonably require.

13.8.2 The Contractor and the Architect shall then, within 5 working days of receipt by the Architect of the Contractor's estimates, agree the Contractor's assessments. Following such agreement, the Contractor shall immediately thereafter comply with the instruction and the Architect shall grant an extension of time under Clause 25.3 of the agreed length (if any) and the agreed adjustments (if any) and the agreed adjustments (if any) in relation to clauses 13.8.1.1 and 13.8.1.4 shall be made to the Contract Sum.

13.8.3 If agreement cannot be reached within 5 working days of receipt by the Architect of the Contractor's estimate on all or any of the matters set out therein; then;

1.      the Architect may nevertheless instruct the Contractor to comply with the instruction; in which case the provisions of Clauses 13.5, 25 and 26 shall apply; or

2.      the Architect may instruct the Contractor not to comply with the instruction, in which case the contractor shall be reimbursed all reasonable costs associated with the abortive [instruction].

13.8.4 The Architect may, by notice to the Contractor before or after the issue of any instruction, dispense with the Contractor's obligation under Clause 13.8.1, in which case the Contractor shall immediately comply with the instruction and the provisions of Clauses 13.5, 25 and 26 shall apply.

13.8.5 If the Contractor fails to comply with any one or more of the provisions of Clause 13.8.1, where the Architect has not dispensed with such compliance under Clause 13.8.4, the Contractor shall not be entitled to any extension of time under Clause 25.3".

Waiver and personal bar

"Where A has by his words or conduct justified B in believing that a certain state of affairs exists, and B has acted upon such belief to his prejudice, A is not permitted to affirm against B that a different state of fact existed at the same time".

Concurrent delays

1.      Gas venting: 18 February (but concurrent with roof steelwork).

2.      Roof steelwork: 1 March.

3.      En suite fittings: 25 March.

4.      Bedhead lighting: 19 February (or 17 February according to Mr Whitaker).

5.      Trouser presses: 13 March.

6.      Central atrium beam encasement: 1 March.

7.      Fibre optic lighting: 15 March.

8.      External mounted floodlights: 31 March.

9.      Cooling to refuse room: 12 April.

10.  Trees: 19 March.

11.  External render: 8 March.

The pursuers have established two concurrent causes: the installation of the lifts, which delayed completion until 24 March, and the construction of the stair balustrades, which delayed completion until 12 April.

Prolongation costs

Conclusion