An overview of force majeure and its application in UK construction contracts JCT, NEC, ICHEME

1. FORCE
MAJEURE
UK

4. Sean Sullivan Gibbs
Chartered Quantity Surveyor, Adjudicator, Arbitrator, Dispute Board Member,
Quantum Expert, Advocate and Party Representative
• Director Hanscomb Intercontinental Ltd
• Called to the Bar of England by the Middle Temple July 2017
• Fellow of the Royal Institute of Chartered Surveyors
• Fellow of the Chartered Institute of Building
• Fellow of the Chartered Institute of Arbitrators
• Fellow of the Chartered Institute of Civil Engineering Surveyors
• Associate Fellow of the Institute of Chemical Engineers
• Cardiff University Bond Solon accredited expert witness

5. FORCE MAJEURE
• Force majeure translates literally from French as superior force.
• Force Majeure describes those uncontrollable events (such as
war, labor stoppages, extreme weather) that are not the fault of
any party and that make it difficult or impossible to carry out
normal business.
• A company may insert a force majeure clause into a contract to
absolve itself from liability in the event it cannot fulfil the terms
of a contract

6. FORCE MAJEURE
Force Majeure Clauses
• A force majeure clause may excuse a party from a contractual obligation in
light of an unexpected event beyond its control in specified circumstances
• The language varies considerably from contract to contract
• The governing law has a significant impact on interpretation and therefore
scope and operation
• Force majeure clauses typically have several common elements

7. FORCE MAJEURE
Definition of Covered Event
Definitions often refer to specified requirements that must be established,
which may include:
• Not within the reasonable control of the parties
• Not reasonably foreseeable
• Effects cannot be avoided through reasonable efforts or due diligence

8. FORCE MAJEURE
Definitions often include a list of covered events
• Exhaustive or non-exhaustive
• Often includes certain natural events, such as “acts of God,” floods, fires,
earthquakes, hurricanes, pandemic etc.
• May include certain political and human events, such as acts of war, civil
strife, invasion, riots, labour strikes or other government measures
• Some clauses also expressly exclude certain event

9. FORCE MAJEURE
Standard for Degree of Impact
• Some clauses excuse an obligation only when a covered event prevents
performance
• Often clauses extend coverage to excuse an obligation when a covered event
“prevents,” “hinders,” or “delays” performance
• Other clauses might instead use different language that requires that a
covered event renders performance “impossible” or in some contracts
“impracticable”
• The language used greatly affects the scope of coverage of the clause

10. FORCE MAJEURE
Additional Requirements
Many force majeure clauses set forth additional requirements that the party
invoking force majeure must establish, such as:
• A duty to mitigate damages arising from the event
• An obligation to provide notice within a defined period
• A duty to undertake reasonable endeavours to resume performance as soon
as practicable

11. FORCE MAJEURE
Consequences of Force Majeure
• If a party has established that a covered event has caused the required
degree of impact on performance and has satisfied all additional
requirements, clauses generally excuse the party’s performance of the
specific obligation
• Some clauses refer to a specified duration for any excused non-performance
• Some clauses entitle a party to terminate the contract
• Termination may be subject to specified conditions

12. FORCE MAJEURE
Force Majeure UK Contracts
• JCT
• NEC
• ICHEME

13. FORCE MAJEURE
JCT
• In the JCT 2016 Suite, the term “force majeure” is used without
definition as one of the Relevant Events in the extension of time
clause.
• Both the employer and the contractor can terminate a JCT
contract if there is prolonged suspension (usually 2 months) of
the whole or substantially the whole of the incomplete work for
force majeure reasons.

14. FORCE MAJEURE
JCT
• JCT contracts do not give force majeure a specific
contractual meaning as such , there is uncertainty about
its applicability.
• It has been extended in cases to events resulting from
human intervention.

15. FORCE MAJEURE
JCT
• The English courts have stated that the force majeure
event must be the sole cause for a party’s non-
performance, considering the facts and applying a “but
for” test

16. FORCE MAJEURE
JCT
• In order to benefit from force majeure, it seems that the
contractor must also show that performance has become
physically or legally impossible, and not merely more
difficult or unprofitable. Therefore the availability of an
alternative method of performance, albeit at an
additional cost, would indicate that the force majeure
clause should not apply.

17. FORCE MAJEURE
NEC
NEC3 and NEC4 contain similar provisions to a clause that is akin to a common
force majeure clause but links this to the compensation event regime. Clause
60.1(19) says that an event which:
• stops the contractor completing the works, or completing them by the
Accepted Programme date;
• neither party could prevent;
• an experienced contractor would have judged at the contract date to
have had such a small chance of occurring that it would have been
unreasonable for them to have allowed for it; and
• is not one of the other compensation events,
• is a compensation event.

18. FORCE MAJEURE
NEC
• Early warning notice required, followed by a risk reduction meeting, then
Project Manager instructs the contractor how to deal with the event.
• The contract procedures and time limits for notifying, and dealing with, the
event need to be carefully followed as time bars apply
• Possible termination if the event stops completion or is forecast to delay
completion by more than 13 weeks.

19. FORCE MAJEURE
ICHEME
• Unamended IChemE forms define Force Majeure as including any
circumstances beyond the reasonable control of the parties which prevents
or impedes the due performance of the contract (clause 14.6 in the Red
Book).
• This expressly includes epidemic and Government action.
• Government action could capture any emergency legislation or any other
exercise of powers restricting movement of people or good..

20. FORCE MAJEURE
ICHEME
• If the Contractor is delayed by an event of Force Majeure he must notify the
project manager as soon as possible after becoming aware of delayed caused
by an event of Force Majeure.
• A consultation should take place before confirmation of any any extension
granted. The parties must use reasonable endeavours to minimise any delay,
whatever the cause.

21. FORCE MAJEURE
ICHEME
• Parties are responsible for their own costs if delayed by Force Majeure
(clause 14.8), it acts as shield and not a sword.
• If performance of the Works is substantially prevented by Force Majeure for
a period of 120 days, either party may terminate the contract.