COVID-19 – Contract Claims

COVID-19

We would like to reassure you that it is business as usual for MPG.  However we have received a number of concerned calls from clients and in response have drawn up the help list of bullet points below:

Look at the operational provisions of your contract:

  1. Are you obliged to submit a revised programmed due to disruption or notify your client;
  2. Does your contract obligate you to give early warnings of delays, if so you must do so promptly;
  3. Does your contract require regular progress reports, if so clearly set out impacts the disease has on the project.

Can you make a claim?

The starting point for your rights and obligations, should you find yourself affected by Coronavirus, will be your contract. None of the standard form contracts (e.g. JCT and NEC3/4) refer expressly to epidemics or spread of diseases.

Outbreak of illness does not fall within the meaning of “excepted risks” used in most of the standard forms so, contractors may have to rely on other clauses in the contract such as suspension, force majeure and prevention, or change in law.  Contractors may not be able to point to one clause for a full remedy, and may have to rely on multiple provisions – used in conjunction with the common law – in order to be granted both time and money.

What about common law remedies?

Contractors may also consider common law remedies but the primary basis of entitlement should be the relevant and applicable terms of the contract.

Is it Force Majeure?

Does your contract contain force majeure clauses, unexpected circumstances outside a contracting party’s reasonable control.  Check what events this covers and you may be able to claim costs arising from the impact.  Check also with regards to any subcontractors you may have.

What if the contract doesn’t contain a force majeure provision or what about claiming Impossibility/ Frustration/Prevention?

Can you argue the effects of Coronavirus itself or of government action aimed at combating it (such as mandatory quarantines) have prevented or frustrated the parties’ performance of your contract, or made performance impossible? If you can’t make a claim or classify Coronavirus as an event of force majeure, you might be released from further performance.  Prior to asserting either the occurrence of a force majeure event, or that a contract has been frustrated, it is very important to take legal advice.

What is the position under an un-amended NEC3 Contract

If you have entered into an un-amended NEC 3 contract Coronavirus may be a Compensation Event under 60.1 (19).  This covers an event which stops the contractor completing the work at all or by an agreed date, an event that couldn’t be prevented, would have been judged as an event with such a small chance of occurring it would be unreasonable for the contractor to consider it when entering into the contract.

What about an unamended JCT contract?

Clause 2.26.14 of the JCT Design and Build Contract identifies “force majeure” as a Relevant Event which entitles the contractor to an extension of time and  entitles either party to terminate the construction contract under clause 8.11.1, it is not a Relevant Matter and gives no entitlement to losses and expenses.

What about insurances?

If your operations are impacted by Coronavirus, you may have in place insurance that responds to at least some of your losses. Business interruption insurance policies in particular may cover disruption caused both by the disease itself and by public policy responses to it, such as enforced quarantines. However, there are often exclusions in such policies. it is important that you notify your insurers promptly.

Conclusion
There may be a number of remedies under your contract that can be used to grant relief from performance if the coronavirus has an adverse impact on any of your construction projects. These may be e.g. force majeure or claims for extensions of time and relief from liquidated damages. However, it will very much depend upon the exact wording of the contract itself and the impact of the virus on the project and any other surrounding circumstances.

For further more detailed information please contact us directly and we will be able to provide advice specific to your circumstances and contract.

Cityscape

Cityscape Qatar

The 9th edition of Cityscape Qatar has officially opened its doors today and was inaugurated by His Excellency Mr Ali bin Ahmed Al Kuwari, Minister of Commerce and Industry and Acting Minister of Finance. They have already welcomed thousands of homebuyers, investors and real estate professionals waiting to discover the latest real estate opportunities in Qatar and beyond.

london marathon time

MPG MD completes the London Marathon 2021

MPG Managing Director, Michael Gallucci finished the Virtual London Marathon – Michael joined Kevin from Appleyard & Trew to run the London marathon on Sunday round the Olympic Rowing Lake at Dorney in Eton.

We were part of the world’s biggest-ever marathon  – running together with more than 22,000 others in 100 countries in the virtual event, along with thousands of others on the streets of London.

We had an amazing time and are looking forward to receiving the well-earned finisher’s medal and New Balance T-shirt.

WETEX DUBAI

WETEX AND DUBAI SOLAR SHOW 2021

Last week MPG attended the WETEX and Dubai Solar Show organized by Dubai Electricity and Water Authority (DEWA). The show featured Dubai’s vision to build a sustainable future for the Emirate.

The show gave MPG the opportunity to observe the integration between all sectors of the energy industry and bring together trade and technical sectors whilst facilitating the creation of new trade opportunities, enhancing an exchange of ideas and experiences and showcasing the latest innovations.

DIFC

MPG at the DIFC (Dubai International Finance Centre)

The Dubai International Financial Centre (DIFC) is the leading international financial hub in the Middle East, Africa and South Asia (MEASA) region. It has been has confirmed that the DIFC Arbitration Institute (DAI) will be combined with the Emirates Maritime Arbitration Centre (EMAC). The unified entity will be called the Dubai International Arbitration Centre (DIAC), an autonomous, permanent, non-profit institution that provides regional and international business communities a high calibre of arbitration services.

Michael Gallucci attended meetings at the DIFC last week and met professionals based at the Centre to discuss claims, disputes and arbitration opportunities.

 

Costigan King

Costigan King 5 Year Anniversary

MPG Expert Witness team spent an enjoyable evening with Costigan King.

David, Kevin, and Michael from the MPG Expert Witness team spent an enjoyable evening with London and Middle East solicitors:  Costigan King.

A big thank-you goes to Julian Critchlow and his team for an excellent event that took place at their city offices.

The firm, Costigan King, is a full-service commercial law firm with offices, including the City of London and New York, offering a wide range of skills.

Its team is comprised of personnel from diverse backgrounds and is assisted by an established network of experienced partners.

You can check them out at Costigan King – Home

Dubai Expo 2020

MPG Back in Dubai!

Back in Dubai!

Dubai, with the 2021 Expo in mind and the WETEX show to attend, we are also looking forward to meeting the new MPG UAE team with whom we are working closely on preparing packages for new projects in Dubai and Kuwait.

 

Kings cross

It’s great to be back in London again

It’s great to be back in London again.

The MPG team had a fantastic lunch with a modular building and site services business Module8.

We discussed some of Module8’s work on the Crossrail and Thames Tideway and had a great meal at the German Gymnasium in St Pancras.

From some of the largest civil infrastructure projects including the Channel Tunnel Rail Link and Heathrow Terminals 2, 3 and 5 to more bespoke and unusual requirements including working in conjunction with English Heritage on a temporary kitchen in the Christopher Wren designed Great Hall at The Chelsea Pensioners, it is unlikely there will be a requirement that the management team of Module8 have not met, delivered and executed previously. You can check them out at https://www.module8.com/

#modularbuildings #kingscross #stpancras #germangymnasium #module8

 

WETEX & Dubai Solar Show

MPG will be at the WETEX show next week in Dubai. Looking forward to another visit to the Dubai Expo 2020 site #dubai #expo2020 https://lnkd.in/dQk6fzYh

WETEX & Dubai Solar Show

The exhibition aims to achieve integration between all sectors of the energy industry and bring together trade and technical sectors whilst facilitating the creation of new trade opportunities, enhancing an exchange of ideas and experiences and showcasing the latest innovations.

Conflicts of Interest in International Arbitration (Online)

We have signed up to attend the SCL Conflicts of Interest in International Arbitration (Online) webinar next week.

This presentation will include:

 – An overview of the law in respect of fiduciary duties, duties of confidentiality and expert duties.
– Discussion of the UK court decision in A Company v Secretariat Consulting [2021] EWCA Civ 6.
– Practical considerations (scope of expert retainers, how to contract out of fiduciary duties, injunctions etc).

https://www.scl.org.uk/civicrm/event/info?id=1260&reset=1

IRONMAN 70-3 Zell

MPG Managing Director signs up for Ironman 70.3 Zell am See-Kaprun

With Covid restrictions now lifting Michael Gallucci has signed up to the 2022 Ironman 70.3 Zell am See-Kaprun.

IRONMAN 70-3 Zell

IRONMAN 70-3 Zell

https://endurancecui.active.com/event-reg/select-race?e=76897834&rf=V7nye6Yvy