Thomas Haller is a senior associate at the law firm BCLP
This year there was an extra holiday to celebrate the coronation of King Charles III. But did this additional holiday entitle the contractor to an extension of time under a JCT contract?
first principles
Certain events may occur during the life of a construction project that cause the completion date to be delayed. Some of these events will entitle the contractor to more time and sometimes money, but others will not entitle the contractor to anything. In fact, depending on the terms of the contract, the contractor may end up paying the employer liquidated damages as a result of late completion.
“It remains debatable whether the additional holiday affects ‘directly’ the works”
The JCT sets out a list of “relevant events” that can extend the completion date of a construction project.
In the event that they occur, the contractor may claim an extension of time, subject to compliance with the relevant contractual procedures to make this claim.
Relevant events most relevant to an event such as the coronation include:
- Force majeure: is not defined in the JCT, but is generally considered an unforeseen event that is beyond the control of the parties and prevents them from fulfilling their contractual obligations.
The key to force majeure is the unpredictability of the event at the time of contracting. Therefore, for contracts entered into after the formal approval of the holiday (in November 2022), it is difficult to see how a contractor could argue that the holiday is a force majeure event because it would have known and should have done they allow it in their program.
- The JCT also gives contractors the right to claim an extension of time if, after the base date, the UK Government or local or public authority exercises a statutory power that directly affects the execution of the works.
If the base date of the contract is later than the date on which the holiday was declared, the contractor would not have any rights. If the base date is before the proclamation, it is still debatable whether the additional holiday “directly” affects the works, especially since employees do not have a general right to take annual leave on a public holiday, so it is not automatically deducted that the works cannot continue as a result of the holiday.
Was the work delayed beyond the completion date?
Even if the contractor can argue that the additional holiday was a relevant event, he still has to show that the event caused the works to be delayed beyond the completion date. This can be difficult to do since we are talking about a single day.
Extra money?
The JCT also contains a list of “relevant matters” which, if the necessary contractual hurdles were to occur and be overcome, would entitle the contractor to claim for losses and expenses incurred as a result of the event.
However, in relation to crowning, the unamended JCT does not contain grounds that would entitle the contractor to claim losses and/or expenses as a result of any of the above events. Therefore, any relief granted for the additional bank holidays would only be temporary.
Final thoughts
In conclusion, the additional holiday does not entitle the contractor to additional money, but may (depending on when the contract was entered into) entitle the contractor to an extension of time. This is of course subject to any custom modifications made to the standard JCT conditions.
On a separate note, in accordance with the terms of the JCT, public holidays are excluded in the calculation of the relevant number of ‘working days’ for the purposes of administering the payment scheme and notifying them under the contract.
Finally, note that the additional holiday may be relevant when counting periods for award calendar purposes. Section 116 of the Housing Grants, Construction and Regeneration Act 1996 specifies: “Where the period would include […] a day which under the Banking and Financial Dealings Act 1971 is a public holiday in England and Wales or, where applicable, in Scotland, that day shall be excluded.
