WEATHER CLAIMS IN THE UNITED

KINGDOM CONSTRUCTION INDUSTRY

David Bordoli1 of Driver Consult Limited2 reviews the way in which weather-based
claims are made in the United Kingdom and details the elements required to make
successful claims, contractual requirements, case law, sources of information and
methods of calculation.3

KEY POINTS
• Under most construction contracts delays caused by unusually severe weather are
excusable but not compensable.
• The major weather effects that affect progress are low temperature, rainfall and other
precipitation, wind speed, snow cover and high temperatures.
• Three elements; the contract, predictability of weather and impact upon progress need to be
considered in the analysis of weather delays.
• Weather records are required to establish what the weather was at the time the work was
being carried out.
• What constitutes ‘exceptionally adverse weather conditions’ is not clear. The ‘average’ test
and the NEC ‘one in ten years’ test are significantly different.
• There are a number of methods of identifying ‘exceptional days’ – whatever method is used it
should be transparent, fair and reasonable.

Introduction123
Weather claims have seen a chequered past; at one time the favourite escape route for contract
administrators to award contractors an extension of time without their clients bearing the
contractor’s associated costs and also not apportioning any blame because of the delay’s
neutral cause. Conversely, no contractor, other than one in desperate need of some relief from
the imposition of liquidated damages and having no other more rewarding justification for delay,
would make a weather claim. However, a combination of the increase in unpredictable weather
patterns and greater contractual risks being placed upon contractors has resulted in a
resurgence of weather-based delay claims.

iThe contents of this article are the opinions of the author and do not necessarily reflect the opinion of Driver Consult Limited.
© David Bordoli and Driver Consult Limited. 2010.
 Weather Claims

Under most construction contracts, delays caused by unusually severe weather are excusable
but not compensable - meaning that the contractor is entitled to extra time as a result of the
delay to progress and is therefore relieved from the imposition of liquidated and ascertained
damages, but is unable to recover any further direct loss and expense associated with the
delay4. Because neither party can control the weather such delays are often described as
‘neutral’ in their effect and cost.
In the UK the major weather effects that have the potential for affecting progress of
construction operations are:

Minimum temperature
During periods of low temperature there are three effects that can affect productivity on site
in addition to a general lack of morale from the workforce and encumbrance of bulky
clothing.
Materials with high water content and those that depend on hydration or evaporation may
not cure properly at low temperatures and consequently result in attaining lower strengths.
Specifications for such materials often state the minimum temperature at which they can be
employed and delays will occur if, because of low temperatures, they cannot be used and the
works not progressed.
The second effect is that during prolonged periods of low temperatures the frozen ground
may become to hard to excavate efficiently, or at least, productivity will be reduced. Frozen
fill materials also become difficult to compact. Those with higher water content can be
subject to ‘frost heave’.
The final delaying influence is one of health and safety. Frost and ice form slippery surfaces,
especially on large flat surfaces such as roofs, and walking upon uneven surfaces is even
more perilous when slippery from ice.

Rainfall (and other precipitation)

There are two aspects, the cumulative amount and the number of days upon which rain falls.
Falling rain tends to disrupt or delay most outdoor operations, again in addition to general
reduction in morale and the encumbrance of waterproof clothing.
Most materials are susceptible to water, from concrete and mortar to paint, resins and
glues. In the case of the former, because their strength and workability is affected by
additional water and in the case of the latter, because they will not adhere to wet surfaces.
Earthworks are particularly sensitive. Excavations become more difficult to control as the
strength of the subsoil is reduced. Tracking of vehicles across unprotected substrate
destroys the surface, may make locations inaccessible and will likely require further work to
maintain levels. For these reason major earthworks for roads and the like are usually
scheduled not to be undertaken during the particularly wet season, November to March.
Chalk based subsoils are especially susceptible.
The cumulative amount of rainfall over a shorter period is likely to have a more detrimental
effect than the same amount of rainfall over a longer period. The rate at which the water
naturally drains away or can be pumped away is dependent upon the cumulative amount of
rainfall. Deep excavations are more likely to flood and roofs are more likely to leak under a
prolonged high rainfall.

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 Weather Claims

Wind Speed
There are also two aspects to wind speed, mean velocity and gust wind speeds.
The most common wind effect is upon the use of tower-cranes, the effects of the wind on a
crane structure can be very considerable during ‘in service’ or ‘out of service’ conditions.
The tower crane’s manual will specify the maximum wind speed at which the tower crane is
to be taken out of service and the precautions to be taken when putting the tower crane in
the out of service condition. Even if the wind does not reach the speed necessary to put the
crane out of service the effect on the load, for instance a sheet of plywood acting as a ‘sail’,
can reduce the productivity of the crane.
In exposed conditions wind speed will reduce the perceived temperature and at height will
necessitate additional safety considerations or work to be stopped to ensure operatives are
not pushed or pulled towards the roof edge5.

Snow Cover
In addition to the delaying effects of the low temperatures associated with snow cover, it
provides additional difficulties in that exposed works are concealed. Trip and other hazards
are increased, haulage becomes more difficult and, in order to progress works, the snow
must be cleared before work can commence.

Maximum Temperature
The heat and lack of rainfall of record breaking summers of 1975 and 1976 are said to be the
reason the previously used words ‘exceptionally inclement weather’ were replaced by
‘exceptionally adverse weather’.
High temperatures are rarely a problem in the UK but the author has had experience of
delays to the construction of grass pitches due to the warm and dry summer of 2007 that
resulted in clay based subsoil becoming too hard to work and for the grass sward to die off.
There are three elements to be considered in the analysis of weather-based delays; the
contract, predictability and impact on progress.

Contract
The first step is to determine if the contract allows the contractor to make claims for delay
resulting from the effects of the weather. Those that do not have specific weather clauses are
likely, in any case, to excuse the effects of weather under a force majeure6 clause.
A gradual refinement of the delay clauses of standard forms of contract has resulted in the
most popular forms having similar wording relating to weather delaying events. The JCT family
of contracts for instance in their 2005 forms say:
Clause 2.29
The following are the Relevant Events referred to in clause 2.27 and 2.28: …
.8 exceptionally adverse weather conditions;
In addition the JCT has a further clause that has particular reference to the more extreme
weather events:
.9 loss or damage occasioned by any of the Specified Perils;

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 Weather Claims

The list of ‘Specified Perils’ includes lightning, storm and flood7.

Similarly the ICE 7th Edition says:
Clause 44 (1)
Should the Contractor consider that …
(d) Exceptional adverse weather conditions …
be such as to entitle him to an extension of time ...
The ICE form also includes a clause that may be of use when considering extreme weather
events:
(f) Other special circumstances of any kind whatsoever which may occur
There is no clear guidance on what constitutes ‘exceptionally adverse weather conditions’ or
over what period the adversity should be measured and assessed. The NEC3 contract takes a
more objective and measurable approach:
Compensation Events 60
Clause 60.1(13)
A weather measurement is recorded
• within a calendar month,
• before the Completion Date for the whole of the works and
• at the place stated in the Contract
the value of which, by comparison with the weather data, is shown to occur on
average less frequently than once in ten years. Only the difference between the
weather measurement and the weather which the weather data show to occur on
average less frequently than once in ten years is taken into account in assessing a
compensation event.
Some standard forms of contract used in other countries have even more precise definitions.
For instance the Hong Kong form HKBC05 has two clauses8:
(b) inclement weather conditions, being rainfall in excess of twenty millimetres in a
twenty-four hour period (midnight to midnight) as recorded by the Hong Kong
observatory station nearest the site, and/or its consequences adversely affecting the
progress of the works
(c) the hoisting of tropical cyclone warning No. 8 or above or the announcement of a black
rainstorm warning.
The JCT 2005 Major Project Construction Contract is one that does not have specific provisions
for extensions of time for matters such as inclement weather. However, it does provide for the
more extreme weather events:
Extension of Time
Clause 18.1
The Contractor shall be entitled to an adjustment to the Completion Date … of the
Project … is or is likely to be delayed by: …
.2 the occurrence of one or more of the Specified Perils.
The Guide to the Contract9 says:

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 Weather Claims

… The list [of Relevant Events] is somewhat narrower than is currently found in some
other JCT contracts and excludes adverse weather conditions, industrial disputes and
delays caused by statutory authorities.
With respect to the authors of the Guide this is not actually the case; the contract does not
exclude adverse weather conditions, it is silent and merely does not include them. Although the
Guide might be persuasive on the interpretation of the contract the Introduction to the Guide
does make it clear that “it is not intended to be a definitive guide to the interpretation of the
Contract, nor a detailed manual for its use”. It is possible therefore that weather related claims
may be successful in relation to the force majeure clause (Clause 18.1.1).

Predictability
Though uncontrollable the weather is generally predictable, short-term forecasts are becoming
more accurate10 and long-term trends are well documented.
For a weather delay to be excusable the contractor must be able to show, in accordance with
the terms of the contract, that the actual weather experienced during the project was
exceptionally adverse. That is, exceptionally more adverse than could have been contemplated.
Generally, the contractor will not be able to make a claim for the effects of ‘normal’ weather.
For instance cold weather and some snow are to be expected in winter and more rain in spring
and autumn than in the summer.
The Met Office has a number of services that can assist contractors in predicting the likely
weather during a project11. When planning a project at tender stage it is therefore possible to
determine what the ‘average’ weather for a particular location and a particular time of year will
be. Having this information allows the contractor to schedule the project to take account of
likely delays due to normal adverse weather or to provide time and/or financial risk
contingencies to counter its effect.
The NEC contract refers to the expected or predicted weather conditions as weather data.
Since there is no authority or clear guidance on what constitutes ‘exceptionally adverse weather
conditions’ it is open to interpretation as to when the weather becomes exceptionally adverse.
The generally established meaning is when, during a calendar month, it exceeds the long-term
average, for instance, the average over the previous ten years. The accepted definition of
‘exceptional’, however, is something that exceeds the average by a significant amount. It then
becomes a subjective judgement when that level is reached and, unless the contract says
anything to the contrary or is more specific, the test will be what is fair and reasonable. The
NEC contract does specify when the weather becomes sufficiently adverse to trigger a
compensation event; when the weather occurs on average more frequently than one in ten
years.
The determination of what constitutes exceptionally adverse weather is crucial as it will
determine the potential for extension(s) of time. For instance, the long-term average number of
days on which more than 1mm of rain fell in London in July is 8.1 days12 whereas the one in ten
year rate is 11 days13. Assuming all other conditions are satisfied only the rainy days in excess
of eight qualify under the ‘average’ tests and only those in excess of 11 for the ‘once in ten
years’ test (see Figure 1).

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 Weather Claims

1
0.9
0.8
0.7
probabaility

0.6 average
0.5 ten year return
0.4 probability
0.3
0.2
0.1
0
0 2 4 6 8 10 12 14 16 18 20 22 24 26 28 30
days

Figure 1. Cumulative Poisson distribution of probability of rainy day.

Impact upon Progress

To succeed in a weather claim the contractor must show that the weather has been in excess of
what the particular contract deems allowed for, and that performance was actually affected by
the weather, which resulted in a delay (or a likely delay) to the progress of the works which then
impacted on the completion date for the project. This generally means it is only those activities
on, or near, the critical path which, if delayed, will have a knock-on effect on the completion of
the project.
Adverse weather might not delay the project but it could affect the contractor’s performance.
This is most likely to happen when the weather affects activities that are not on the critical path
of the project, work is delayed but it does not have a knock on effect on the completion of the
programme.
The case of Walter Lawrence and Son Ltd -v- Commercial Properties (UK) Ltd14 (a JCT 1963
contract hence the term ‘exceptionally inclement weather’) established
… on the ground of “exceptionally inclement weather” the correct test for the architect is
whether the weather itself was “exceptionally inclement” so as to give rise to delay and
not whether the amount of time lost by the inclement weather was exceptional …
Meaning that once it was established that the weather was exceptional then the delays arising
from it could be determined. The sequence of establishing a weather-based delay is:
• was there exceptionally adverse weather, and if so
• did it delay the actual progress, and if it did
• how much did it delay the project completion?
The case also established that it was the weather at the time the work was being undertaken
that should be assessed, not the weather when it was planned to be undertaken. For instance,
if the work was planned to be carried out in July but was carried out in October then it is the

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 Weather Claims

effects of the weather in October that are of interest, not of July, even if the shift to the
exceptionally inclement period was the result of a culpable delay by the contractor.
The example cited above related to a delay before the original or extended date for completion.
In relation to delays after the due date HHJ Hawser said:
These letters do raise the issue as to whether the plaintiffs [Walter Lawrence] can
legitimately claim in respect of delays which occurred after the date when the contract
plus any proper extension of time ought to have been completed. I think that there is
clearly an issue on that aspect of the matter, but it would appear to me that the plaintiffs
have a claim of substantial character in respect of the period to the end of the contract –
as properly extended.
A similar situation arose in the case of Balfour Beatty Building Ltd -v- Chestermount Properties
Ltd15 (a JCT 1980 contract) in which the applicable principle was stated by Coleman J as follows:
There may well be circumstances where a relevant event has an impact on the progress
of the works during a period of culpable delay if where that event would have been wholly
avoided had the contractor completed the works by the previously fixed completion date.
For example, a storm which floods the site during a period of culpable delay and
interrupts progress of the works would have been avoided altogether if the contractor
had not overrun the completion date. In such a case it is hard to see that it would be fair
and reasonable to postpone the completion date to extend the contractor’s time.
Ideally the contractor and others on site (the Clerk of Works or Resident Engineer for instance if
one is retained) will keep daily records of the weather; maximum and minimum temperatures,
rainfall, wind speed and so on. Also a contemporaneous log of what works have been affected
by adverse weather; how the work was affected, if the whole or part of the day was lost, if work
continued but at a slower rate, what steps were taken to minimise the effects of the weather
and the trades and operatives involved.
Although most contractors do keep some daily records they tend not to be sufficiently robust to
provide sufficient proof of the severity or extent of the weather. Few sites are furnished with the
specialist equipment to make accurate climate recordings. Most contractors (and contract
administrators assessing claims) rely on weather measurements recorded at an independent
weather station suitably close to the site. In the UK most of this data is provided (at a cost) by
the Met Office (see Figure 2 for example). This information is available some time after the end
of each month, it is then only at that point can the contractor determine if the weather has been
exceptionally adverse.
It is correct to assume that recent spells of bad weather would change the long term ‘average’
weather data. However, in the calculation of long term averages the Met Office does not appear
to use recent or rolling data16. For the long term averages:
“The averaging period for the working hours information is generally the 15 years 1975-
89, except rainfall averages relate to 30 year periods. Daily items pages use averages for
the 25 years 1964-88.”
and for the NEC averages:
“The NEC averages provide a summary of weather conditions based on the 1961-90
averages with 1 in 10 year values identifying set thresholds for planning purposes.”

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Building Downtime Summary (MetBUILD)

Tel: 0870 900 0100 www.metoffice.com

WITTERING - NOVEMBER 2003 (Ref: MO19)

Report issued on Wednesday, June 23 2004 at 14:14 Page 4 of 4

Air min Grass Rainfall Snow depth Mean Maximum

temp min temp amount (cm) at Wind gust for
(deg C) (deg C) (mm) 09:00GMT speed day (mph)
for
day
Day (mph)
1 6.6 5.5 2.8 - 12.6 29
2 4.8 0.5 4.0 - 18.0 40
3 7.5 5.5 0.0 0 19.7 46
4 2.7 -2.5 0.0 0 11.2 26
5 6.9 7.1 0.0 0 11.2 26
6 5.9 2.8 0.0 0 5.1 16
7 6.3 2.6 0.0 0 8.9 21
8 5.5 3.6 0.0 - 12.4 26
9 4.1 -0.6 0.0 - 6.2 16
10 5.0 6.6 0.2 0 4.1 12
11 5.0 4.2 3.6 0 6.9 20
12 6.5 8.1 0.2 0 10.0 23
13 4.7 0.5 0.4 0 10.5 29
14 7.8 7.1 0.8 0 24.0 51
15 7.5 5.1 0.0 - 13.2 33
16 2.7 0.1 0.0 - 9.3 20
17 2.2 -1.6 5.4 0 12.9 26
18 7.0 9.9 0.0 0 17.3 33
19 11.2 10.1 01.2 0 16.0 33
20 10.8 10.2 5.0 0 10.4 25
21 3.3 1.1 4.6 0 3.7 9
22 3.2 1.8 10.6 - 7.9 20
23 3.9 2.6 8.8 - 8.1 17
24 1.7 -0.6 0.0 0 6.8 15
25 0.5 -4.5 9.4 0 12.7 28
26 7.1 6.4 2.4 0 14.6 35
27 -1.1 -6.6 0.0 0 5.6 13
28 -1.3 -7 0.0 0 12.5 23
29 0.4 3.3 3.4 - 15.6 41
30 1.5 -1.6 4.4 - 5.0 14
No of air frosts No of ground No days of rain No days of rain No days Mean wind
frosts >= 1mm >= 10mm of snow speed (mph)
lying
MON-FRI 2 6 7 0 0 11.2
total
Long-term 4 9 7 1 0 10.5
average
MON-SAT 2 6 10 1 0 11.4
total
Long-term 5 11 9 1 0 10.5
average

You receive this report for personal use only subject to our terms and conditions, available on request. Broadcast, publishing or redistribution prohibited

© Crown Copyright. Met Office 2004

Figure 2. Example of weather measurements available from the Met Office17.

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 Weather Claims

Exceptional Days
Once the three elements; contract, predictability and impact on progress have been met there
then comes the difficulty of determining which of the adverse days are exceptionally adverse
days. An extension of time can only be given for the exceptionally adverse days, the normally
adverse days are the risk of the contractor. It is quite feasible that, depending upon the relative
timing of the activities in the programme, some critical activities will be affected by predictably
adverse days (‘normal’ days) and some by exceptionally adverse days and similarly some non-
critical activities will be affected by normal days and some by exceptionally adverse days.
The contractor will generally want the exceptionally adverse days to be those which affect
activities on the critical path thus resulting in an extension of time. Whereas the client will
generally want the exceptionally adverse days to affect non-critical activities so that the risk of
delay is the contractor’s. A method of selecting the exceptional days that is transparent, fair
and reasonable is required.

Example
• During May the long-term average number of days with rainfall more than 5mm18
= 4 days
• The one in ten year return statistic = 6 days
• The actual number of days when rain exceeded 5mm = 7 days
The calendar showing the actual rainy days is at figure 3.
• of the seven rainy days using the average number of days as the norm there are three
exceptional days (7 - 4 = 3), and
• of the seven rainy days using the one year in ten number of days as the norm there is one
exceptional day (7 - 6 = 1).
In the following methods the exceptional days will be calculated using the average number of
days as the norm.

date 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

actual

Figure 3. Calendar showing the actual rainy days.

Scott’s Method
Scott’s method19 uses a simple calculation to spread out regularly the normal adverse days and
the exceptional adverse days.
Starting with the first day lost numbered 1 and subsequent days numbered in order, the
exceptional days are to be selected as occurring every nth day lost, where n is given by:

exceptional day x
n = INTEGER total days lost
exceptional days

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 Weather Claims

where:

total average
exceptional days = -
days lost days lost

So, in the example above the first exceptional day will be the nth lost day:
INTEGER (1 x 7) / 3
INTEGER [2.33] = 2
The second exceptional day will be:
INTEGER (2 x 7) / 3
INTEGER [4.67] = 4
The third exceptional day will be:
INTEGER (3 x 7) / 3
INTEGER [7.00] = 7
The calendar showing the actual, normal and exceptional rainy days is at figure 4.

date 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

actual

normal

exceptional

Figure 4. Scott’s method; actual, normal and exceptional rainy days.

NEC Method
The NEC method20 simply states that the compensation event occurs from the day in the month
when the actual number of days exceeds the normal number of days.
The calendar showing the actual, normal and exceptional rainy days is at figure 5.
Whilst this opinion and method is likely to be persuasive in relation to NEC contracts it is not a
contractual requirement and, as far as the author is aware, it has not been validated in Court.

date 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

actual

normal

exceptional

Figure 5. NEC method; actual, normal and exceptional rainy days.

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 Weather Claims

Other Methods
The two methods described above appear transparent, fair and reasonable, however, as there is
no authority on what constitutes ‘the correct method’ those involved are at liberty to develop
their own methods so long as they pass the transparent, fair and reasonable test.
Other methods that have been suggested include selecting the exceptional days as those that
have the greatest rainfall, lowest temperature, highest wind velocity and so on. This sounds
feasible, perhaps because selecting the days of the most extreme weather measurements has
some verbal correlation with the term exceptionally adverse. Conversely it is illogical as most
of the weather records relate to the frequency of the events, not the quantity of the events.
Perhaps the most logical selection would be made by random selection of the exceptional days.
Although this is a fair and reasonable approach it is far from transparent. If a truly random
selection were made it is unlikely that opposing parties would arrive at the same exceptional
days and, as any particular selection has the possibility of being a random selection, it is likely
that accusations of bias would be made if the selection favoured one party or the other.
In relation to Scott’s method and the NEC method, Scott’s is a more realistic approach. It is not
logical that the normal days should all be grouped at the beginning of the month and the
exceptional days all at the end. Nevertheless there is a matter of practicality that favours the
NEC approach.
Using Scott’s method the contractor does not know until the end of the month, when all the
actual days are known, which days are normal and which are exceptional. As the contractor
holds the risk for the normal days it might be in his interest to take steps to overcome the
delaying effects of the weather to minimise any liability for liquidated and ascertained damages
should the effects of the normal weather cause him to be in culpable delay. In order to
minimise his risk the contractor may well be involved in additional cost; heaters, rain shelters,
working additional hours and so on. The additional cost would be balanced against the cost of
over-run, damages, loss of reputation and so on.
Whilst the contractor is usually obliged to mitigate the effects of delays21 no matter whose
responsibility, this does not generally mean that he should spend significant amounts to do so.
The contractor is then in a difficult position - to spend money to mitigate the delays which might
eventually not be his responsibility or to not spend money and risk over-run and the additional
cost of damages and so on.
Using the NEC method the prudent contractor, if he invests in the necessary historical records,
will know month by month what the normal adverse weather will be and so can count down the
days for which he should spend to mitigate his own risks and subsequently request of the
employer instructions to spend to mitigate the employer’s risks.

Extreme Weather Events

Climate change and global warming are likely to increase the occurrence of extreme weather
events22. The weather events listed in the Specified Perils; lightning, storm, tempest and flood
are to provide extensions of time in the aftermath of such an event. In recent years the UK has
witnessed this type of event:
• The Boscastle storm (August 2004)
• Carlisle and Welsh floods (January 2005)

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 Weather Claims

• The Birmingham tornado (July 2005)

• Major flooding in SW England (May, June & July 2007)
• Snow in Ottery St Mary (October 2008)
• Heavy snow storm in SE England (February 2009)
Delays resulting from this type of weather event are not treated in the same way as extremely
adverse weather. Such events are unpredictable and their effects likely to be extreme and often
causing damage and closure of construction projects for extended periods of time.
As a result each case has to be treated on its merits and delay calculated in a different manner.
Whilst such events are relatively rare it is not possible to generalise but the likely scenario is
that the contractor will reschedule the works including any repairs to the partly constructed
works and any additional works required as a result of the weather event. The obligation being
on the contractor to show that his proposals are fair and reasonable and that the additional time
for completion is justified.

Figure 6. The opening of the new £8.35m cafe on the summit of Snowdon was delayed
because of bad weather.23

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Footnotes
1. BSc MSc FCIOB MAPM ACIArb. Associate Director. Driver Consult Ltd, 1-3 Norton
Folgate, London E1 6DB.
2. Driver Consult Limited is the UK’s leading provider of dispute avoidance, dispute
resolution and consultancy services to the construction and engineering industries.
3. This article is based upon the presentation “What would Michael Fish say? – How to
present weather-based claims” by David Bordoli at the Asta Powerproject National
User Forum on 26 November 2008 at the British Library, London. It was first published
in Construction Law Journal (2010) 26 Const. L.J. No. 1, pp.19-32 and is reproduced
with their permission.
4. Weather delays may be compensable to the extent that they occur as a result of earlier
Employer delays. In any event, weather events are ‘excusable events’ under the NEC
contract and are therefore compensable.
5. For further details see: Roofing and cladding in windy conditions. 4th edition. National
Federation of Roofing Contractors (2006). Lays down the conditions under which
working is not practicable or possible from the point of view of complying with current
safety standards. Provides a satisfactory means of substantiating claims for an
extension of time on a roofing contract.
6. Force Majeure (French: "superior force") is a clause in contracts which essentially
frees both parties from liability or obligation when an extraordinary event or
circumstance beyond the control of the parties, such as war, strike, riot, crime, act of
God (eg. flooding, earthquake, volcano), prevents one or both parties from fulfilling
their obligations under the contract. Force majeure is not intended to excuse
negligence or other malfeasance of a party, as where non-performance is caused by
the usual and natural consequences of external forces (eg. predicted rain stops
construction) or where the intervening circumstances are specifically contemplated.
7. Earlier JCT forms and others also included ‘tempest’ in the list of Specified Perils’; a
violent windstorm, frequently accompanied by rain, snow, or hail.
8. This is reported in PICKAVANCE, Keith. Delay and Disruption in Construction Contracts
- 3rd Edition. LLP Professional Publishing (2005), p.97.
9. Major Project Construction Contract Guide (MP/G). Sweet and Maxwell Ltd (2005). At
paragraph 45, page 8.
10. The Met Office exceeded all Key Performance Targets for 2007/8 in March 2008 for the
accuracy of its forecasts.
See http://www.metoffice.gov.uk/corporate/verification/city.html for details. The March
2008 data was that exhibited on the website on 24 January 2009.
11. See http://www.metoffice.gov.uk/construction/.
12. This is based upon records from http://www.weather-uk.com/ and is based upon the
years 1960-1991, those being the years that the Met Office uses to calculate the NEC
averages.
13. This assumes a Poisson distribution f(x) = uxe-u/x!. Where f(x) = the probability of x rainy
days in the month, u = the expected number of rainy days or average number of rainy

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days in the month and e = 2.71828. When the cumulative Poisson probability ≈ 0.9 that
is the number of rainy days likely to occur within a ten year period. [With thanks to Dr
Francis Edum-Fotwe BSc MSC PhD, Lecturer in Construction Management at
Loughborough University, for verifying this statistical approach].
14. (1984) 4 Con. LR 37.
15. (1993) QBD 62 BLR1.
16. See http://www.metoffice.gov.uk/construction/pastdata2.html and
http://www.metoffice.gov.uk/construction/necplan.html.
17. Reproduced by permission. Crown Copyright 2008, Met Office.
18. The guidance note to the NEC3 contract says rain in excess of 5mm is a measure of
when outside work may be interrupted by rain.
19. SCOTT, Stephen. The nature and effects of construction delays. Construction
Management and Economics, vol 11, no 6. E & F Spon (1993).
20. The NEC method is explained in HUGHES, Kelvin. FAQs - Putting ECC3 into practice.
NEC Newsletter, 35 (April 2006). “The compensation event occurs from the day in the
month, for example cumulative rainfall in February 2006, exceeds the weather data for
past February’s rainfalls on a ‘less than 1-in-10-year’ test.”
21. A discussion regarding the requirements to mitigate delay and so on is outside the
scope of this paper. This is a developing area of contract and case law. The Society of
Construction Law in its Delay and Disruption Protocol (2002) offer some guidance at
paragraph 1.5 but it must be stressed that this is not a statement of the law:
1.5.1 The Contractor has a general duty to mitigate the effect on its works of Employer
Risk Events. Subject to express contract wording or agreement to the contrary,
the duty to mitigate does not extend to requiring the Contractor to add extra
resources or to work outside its planned working hours.
1.5.2 Note that the requirement in the UK Joint Contracts Tribunal (JCT) contracts for
the Contractor to use ‘best endeavours’ to prevent delay in the progress of the
works and prevent completion of the works being delayed beyond the completion
date may place a higher burden on the Contractor than the normal duty to
mitigate. In the event of Employer Delay, it is of course open to the Employer to
agree to pay the Contractor for additional mitigation measures.
22. From
http://www.metoffice.gov.uk/corporate/pressoffice/weatherguide/climatechange.html
“Will climate change mean that we will see more severe weather events? Experts
predict that fierce storms and floods — such as those that brought chaos to parts of the
UK in October 2000 — are likely to become more frequent in the future. Over the past
100 years, warming has been accompanied by a reduction in the frequency of frosts and
an increase in the number of heatwaves in many parts of the world. The amount of
rainfall is getting heavier in some countries in terms of volume per downpour.”
23. Reproduced by permission of Trinity Mirror North West & North Wales Limited. From
The Daily Post article ‘No end in sight for Snowdon summit café’, 19 June 2008 by
Hywel Trewyn at http://www.dailypost.co.uk/news/north-wales-news/2008/07/19/no-
end-in-sight-for-snowdon-summit-cafe-55578-21368403/.

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