Note: Questions (A) and (B) of Section A have the weighting shown in square brackets at the end of each question. Overall, Section A is worth 50% of the entire assignment. The essay in Section B is also worth 50% of the entire assignment overall.
A property developer, High-Octane Enterprises LLP (‘High-Octane’), employs a small construction firm, Tongue & Groove Fabricators Ltd (‘Tongue & Groove’), to build a mixed retail and residential development close to the centre of Chichester – a city that at one time went by the name of Noviomagus Reginorum.
After demolishing a single storey shed that has stood on the site since Victorian times, and whilst carrying out excavations for the foundations of the new development, a cache of bronze coins is discovered – buried in a set of six Roman amphorae. Work is immediately halted and archaeologists are called to the site. The archaeologists soon discover a further seven vases, also packed full of Roman coins. The archaeological dig continues for six weeks before the archaeologists pronounce themselves satisfied that they have unearthed all the antiquities they are likely to find on the (relatively small) site. The discovery of this very significant haul of coins sets back the schedule by a total of seven weeks.
After the works get underway again High-Octane have a change of mind about the layout of the retail space in the development and decide – as Tongue & Groove’s CEO puts it – to ‘cram in’ one extra, tiny shop. This impacts on the configuration of the foundations – the construction of which is already quite advanced – and involves a redesign of the internal layout of another shop from which the tiny shop had been ‘carved out’. Tongue & Groove estimates that the design changes are likely to delay completion of the project by anything up to five further weeks.
On the assumption that the JCT Standard Building Contract with Quantities 2011 (unamended) governs the position, as soon as the Roman antiquities are discovered at the site what ought Tongue and Groove to do in terms of its contractual obligations and what action should High-Octane, or its architect or contract administrator (on High-Octane’s behalf), take in response?
Also, from a purely procedural point of view, and to safeguard its position from the standpoint of any delay in completing the works, what action should Tongue and Groove take? Additionally, describe and explain what action High-Octane, or its architect or contract administrator (on High-Octane’s behalf), should take in response to the relevant action taken by or on behalf of Tongue & Groove under the contract.
[Weighting on this question is 50% of the marks to be awarded to Section A and 25% of the marks for the assignment overall.]
Assume for purposes of this question that the contract that governs the project is not a standard form JCT contract but is instead a sketchy set of ‘favourite’ terms and conditions routinely produced by Tongue & Groove for projects of this kind. The terms and conditions are entirely silent about steps to be taken when a client/employer redefines, or attempts to redefine, the scope of the contract works in circumstances where there is the potential for the works to be delayed.
In relation only to the reconfiguration works instructed by High-Octane – i.e. disregarding the earlier delay caused by the discovery of antiquities – assess the impact and legal consequences of the delay occasioned by the reconfigured works on the basis that general common law legal principles governing breach of contract are relevant and applicable. (The answer should include discussion of the more specific concept of time being ‘at large’ in the context of a building contract.)