Diploma in Construction Law and Contract Administration

musgravedk

Hi all, was considering doing this course next year was hoping to hear from people who have been through the course, and could maybe fill me in on workload of the course and how they found the course in general

Thanks for any replies

jblack

PM if you want some info

ColinMc

Hi All,

I am working for a subcontractor in Scotland and I have a query which I hope some of you may be able to help me with.

We have incurred additional costs on site due to unforseseen bad ground conditions. Who is responsible for the additional costs and delay resulting from this? the employer, or contractor / subcontractor

Hope some of you can help

Colin

jblack

See Cooperative Insurance Society Ltd v Henry Boot [2002] and contrast it with Bacal Construction v Northamption Development.

Has the ground condition been warranted or incorporated into the contract?

ColinMc

Hi JBlack,

Thanks for the reply. The contract seems to be silent on the matter.

EMcMorrow

Hi ColinMc,

Just to follow up on a few of the points made by JBlack on the matter. If the contractor has undertaken to construct the work for a lump sum then the contractor will be deemed to have taken the risk of encountering bad ground conditions, whether it is forseeable or not. If the contract is silent on the matter then it is for the contractor to take the view on whether to include a provision for this.

You should read the following additional cases as well as those mentioned by JBlack:

Workshop Tarmacadam Co Ltd v Hannaby (1995[/I][/I]) and Nuttall v Lynton and Barnstaple Railway Co (1899)

jblack

EMcMorrow wrote: »

Hi ColinMc,

Just to follow up on a few of the points made by JBlack on the matter. If the contractor has undertaken to construct the work for a lump sum then the contractor will be deemed to have taken the risk of encountering bad ground conditions, whether it is forseeable or not. If the contract is silent on the matter then it is for the contractor to take the view on whether to include a provision for this.

You should read the following additional cases as well as those mentioned by JBlack:

Workshop Tarmacadam Co Ltd v Hannaby (1995[/I][/I]) and Nuttall v Lynton and Barnstaple Railway Co (1899)

Historically, there is a long line of cases from the days of Brunel and before that place the risk of ground conditions with the contractor; Sharpe v. San Paulo Railway, Tharsis Sulphur & Copper v. M'Elroy, Thorn v. London Corp, Great Western Railway v. Ranger. But, regardless of the contract being lump sum, remeasure, target cost or whatever - if the employer has warranted, or made representations to the ground conditions that may be construed as a representation, and that is reasonably relied upon by the contractor, there may be:

a) a contractual claim
b) a claim for misrepresentation
c) some other claim dependent upon facts

arising out of ground conditions being different.

But it turns on contractual documentation, or perhaps some extrinsic evidence - not forgetting that if it is a public works contract, the existence of an entire agreements clause will probably exclude the ability to rely on such evidence. See ICS v. West Brom Building Society, Chartbrook v. Persimmon Homes, Sanderson v. Watford Electronics etc

ColinMc

Hi EMcMorrow and JBlack,

Thanks very much for the useful information. Knowing that puts us in a better position now when dealing with the Main Contractor.

Just one more question, are we entitled to recover the cost of preparing the a claim for the additional costs incurred due to the ground conditions?

EMcMorrow

Hi ColinMc,

By preparing and submitting your claim you are merely carrying out an express contractual obligation and thus it would be unlikely that you would be entitled to reimbursement.

Regards

Enda McMorrow