As the weather must be classed as exceptionally adverse by comparison to the normally expected type of weather for the time of year and location, it would be wise to obtain meteorological reports for the previous 10 years. Consider obtaining reports from the closest weather station to the site. Compare these to the normal deviation in weather patterns to establish adversity.

It will not be until the end of the month that we find out if the temperature, the amount of snow and the duration of that snow lying on the ground during early February will exceed the 10 year average for this type of weather.

NEC3

By comparison to JCT contractors, NEC3 users are entitled to consequential loss of time and expense once adverse weather is proven. Proving adverse weather is designed to be significantly easier under NEC3 under its scientific approach, but it is not without its hurdles.

A strict reading of clause 60.1(13) provides that weather will only constitute a compensation event if the recorded weather over a calendar month, experienced before the completion date for the whole of the works, at the place stated in the contract data, shows as having occurred on average less frequently than once in ten years.

The contract data should reveal the place where weather is to be recorded, and the measurements to be taken for each calendar month. These include levels and duration of rainfall, duration of air temperature below zero degrees, and the volume and duration of snow lying on the ground.

Snow joke: adverse weather and extension of time claims

Contractors facing delays and disruption due to the recent heavy snow should look carefully at their contractual entitlements to time, loss and expense. This Hot Topic looks at the effect of adverse weather on extension of time claims under NEC3, JCT 2005 and TPC2005, and explains how to get the most out of each claim.

JCT 2005

JCT 2005 contractors are entitled to an extension of time for the relevant event of "exceptionally adverse weather conditions". The good news is that the whole of the delay is recoverable, however, there is no entitlement to associated loss and expense. That aside, the historic problem with claiming time as a result of inclement weather is threefold:

There is no definition of 'exceptionally adverse weather' in JCT

Even if a claim can be established, delay also has to be proven

Both matters are ultimately at the contract administrator's/architect's discretion

So what should be considered when making a claim?

As a starting point, as there is no definition of adverse weather under JCT, it is safest to assume that all types of weather conditions, including snow, could qualify as relevant events.

Hot topic

It would be best to ensure that the weather station nominated under the contract data is the closest station to the site.

As the weather is assessed over a calendar month it is unlikely that a short sharp spell of heavy snow will constitute a compensation event, as the weather conditions would be averaged out over the calendar month. As the recent snow fell between the end of January and the beginning of February, the calculations will inevitably be quite complex.

Under NEC 3 the contractor is entitled to a change in the prices and the reasonably foreseeable costs of dealing with the adverse weather. However, if the event is not notified within 8 weeks of the event occurring then there will be no entitlement to a change in the prices, the completion date or a key date unless the project manager should have notified of the event but did not.

Whilst the contractor does not have the burden of defining adverse weather, as with JCT the consequences of the compensation event still need to be established and the assessment of this is at the project manager's discretion. To get the best out of any claim, make sure that notification was served in time and that supporting records are full and substantive.

TPC 2005

TPC 2005 does not specifically mention the effects of adverse weather on extensions of time, so it is even more difficult to establish a claim than under either JCT 2005 or NEC3.

The TPC2005 contractor is entitled to an extension of time "where any matter arises which is beyond the reasonable control of the Service Provider and any Specialists and where despite the Service Provider's best endeavours such matter adversely affects the agreed time to complete any Task(s)". Although this seems clear, beware the responsibility to use 'best endeavours' to avoid delay as a result of the adverse weather before notification. 'Best endeavours' is not defined in the TPC2005 but in legal terms this phrase indicates a very high hurdle.

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Having used best endeavours to minimise the effects of inclement weather the contractor must then notify the client representative with all available evidence, costs, and detailed proposals for minimising effects. The contractor will then be entitled to a fair and reasonable extension of time and money, but this is subject to the client representative's discretion.

It is reasonable to assume the same weather information as that required under JCT 2005 will need to be supplied, but clearly, the contractor's position should be mitigated as far as possible before applying for an extension of time.

Summary

It's worth noting that as loss and expense cannot be claimed under JCT, the contractor should check if there is any alternative entitlement to extensions of time against other relevant events occurring during the same period as the inclement weather. Other relevant events may give an entitlement to time, loss and expense and it would be in the contractor's best financial interests to notify of that event rather than adverse weather.

Jonathan Brooks Partner jonathan.brooks@osborneclarke.com These materials are provided for general purposes only. Osborne Clarke does not accept liability for the contents of these materials and legal advice should be taken in respect of a particular matter.

Don't forget:

Check the contract for any conditions precedent regarding notification of compensation/relevant events

Make notification as soon as possible, and in accordance with the contract

Collate all available weather information

Compile full and substantive particulars of delay