Is there a condition precedent under JCT 2016 compared to JCT 2011 or is it in both forms for recovering loss and expense?

Asked 3 months ago
2020-07-02 09:18:48

Please review these two clauses and let me have your thoughts as to is there a difference between the two standard form wordings, where the 2016 is subtly different to the 2011 version in respect of the Contractor entitlement to loss and expense or do they have the same effect?

JCT 2011, clause 4.20 states:

“If in the execution of this Contract the Contractor incurs or is likely to incur direct loss and/or expense for which he would not be reimbursed by a payment under any other provision in these Conditions due to a deferment of giving possession of the site or relevant part of it under clause 2.4 or because the regular progress of the Works or any part of them has been or is likely to be materially affected by any of the Relevant Matters, the Contractor may make an application to the Employer. If the Contractor makes such application, save where these Conditions provide that there shall be no addition to the Contract Sum or otherwise exclude the operation of this clause, the amount of the loss and/or expense which has been or is being incurred shall be ascertained and added to the Contract, Sum provide always that the contractor shall"

And clause 4.20.1 states:

"make his application as soon as it has become apparent, or should reasonably have become, apparent to him that the regular progress has been or is likely to be affected"

JCT D&B 2016 clause 4.19.1 states this:

"If in the execution of this Contract the Contractor incurs or is likely to incur any direct loss

and/or expense as a result of any deferment of giving possession of the site or part of it under

clause 2.4 or because regular progress of the Works or any part of them has been or is likely

to be materially affected by any Relevant Matter, he shall, subject to clause 4.19.2 and

compliance with the provisions of clause 4.20 be entitled to reimbursement of that loss and/or

expense........"

And 4.20.1 of JCT D&B 2016 states this:

"The Contractor shall notify the Employer as soon as the likely affect of a Relevant Matter on regular progress or the likely nature and extent of any loss and/or expense arising from a deferment of possession becomes (or should have become) reasonably apparent to him."

Let me have your thoughts please as to whether you believe the 2016 version is a condition precedent to loss and expense or both 2016 and 2011 are in respect of the timing of the notice, i.e. if the Contractor does not notify when it becomes reasonably apparent [or should have], does this prevent the Contractor from being paid loss and expense?