Everyone will be aware of the flooding which has hit the country since the New Year. Focussing on two construction contracts used in the UK, JCT and NEC, the question that arises is whether this is, using JCT speak, either an “exceptionally adverse weather conditions” or “force majeure”? In NEC3 language is this an unusual “weather measurement” or a prevention event? That is an event which stops the contractor completing the works and which neither party could prevent, that an experienced contractor would have judged at the Contract Date had such a small chance of occurring it would have been unreasonable for the contractor to have allowed for it and is not catered for by any other compensation event (i.e. weather).
There is no easy answer to this dilemma. Some employers may take the view that the floods are caused by exceptionally adverse weather or force majeure. Others will want to consider how the flooding occurred and whether it was preventable.
Furthermore under NEC3, given flooding in certain parts of the country appears to feature regularly, flooding in an area might be seen as common place and not a compensation event.
Other contracts adopt a slightly different approach. FIDIC for example refers to “exceptionally adverse climatic conditions” which may have a bearing on flooding depending on how it arose.
Alternatives could be to amend a contract to reduce the NEC 3 timeframes, or describe flooding as a situation when the volume of water present means the works cannot be progressed for a given number of days, or where access to the site is rendered impossible.
Whatever the situation may be, this should concern both employers and contractors and be taken into account when preparing a contract.
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