Force Majeure

Check for an express force majeure clause.

Contract Force Majeure clauses will generally stated description of events that are required to occur for works so they can be suspended.

If the clause states one of the events then force majeure will have occurred and rendered the works impossible or delayed or disrupted (disrupted or frustrated are deemed as the works becoming substantially more difficult and more time consuming but still possible by other means).

One Must carefully review:

• whether the event or change is a force majeure event;
• if causation has occurred;
• whether the impact of the event on the contract is beyond the affected party’s control;
• whether the Contractor and or Supplier took all reasonable steps to prevent the Delay or Disruption.
• What risk reduction measures to lessen the Delay or Disruption have taken place.
• Consideration of Cash flow issues surrounding potential advance payments or due Payments and or retention already made.

Frustration

If there is no Force Majeure Clause in your contract or the clause does not extend to the specific circumstances in play at the relevant time, parties may need to rely on the term of frustration. This route has many risks and generally is not a good hand to play and should only be played as a last resort.

There are some items of Frustration to consider if so:

• The event or change to the works information must provide due cause and make the works would therefore be impossible or substantially different from the works information or contract terms entered under hand or by deed;
• The contract does not have a Force Majeure clause or does not have a clause to deal with a viral infection or Pandemic !
• The contract provides stated risks that at the time of agreeing the contract terms; that later proves to be incorrect.

The other main frustration claims that could be pursued and or not

Pursued

1. The government imposes a nationwide ban on large events which therefore causes disruption and frustration !

Or not

1. If the relevant event could of reasonably occurred but neither party therefor disruption and or frustration will not be available as a defense of breach.

The above advice is based on a view of the law and its limitations at the time of the Published review of Force Majeure and Frustration

If you require further advice and assistance please email one of our team at info@djjconsultancy.co.uk or gary@djjconsultancy.co.uk or visit our website at www.djjconsultancy.co.uk