Where no completion date has been specified, a contractor's claim for prolongation costs will be uncertain.
Prolongation claims relate to delay, and should be distinguished from claims for disruption. If the project is disrupted by the principal but the programmed completion date remains unchanged, the contractor can still claim the loss and expense it has incurred as a result, if the disruption has resulted in it having to adopt inefficient working methods. This is generally a claim for the cost of the lost productivity.
The recent English cases of Van Oord UK Limited, Sicim Roadbridge Limited v Allseas UK Limited [2015] EWHC 3074 (TCC) and RWE Npower PLC v Alstom Power Limited (2009) WL 5641217 show that the courts are commonly faced with conflated claims for loss and expense due to prolongation and disruption, which can require separation. However, in practice, the distinction may be less relevant as claims for disruption and delay to the completion date (caused by the principal) often go hand-in-hand.
In summary, if a contractor is able to establish:
• default on the part of the principal
• that it has incurred actual loss and expense as a direct result
• that it is not recovering under any other provision of the contract
• there is no provision in the contract preventing such recovery,
it may be entitled to an EOT and prolongation compensation for loss and expense actually incurred. Charging orders under the Construction Contracts Act 2002 - infrastructure projects
The developers of infrastructure and the owners of land through which the infrastructure is built may be surprised to find that the land in question can be the subject of a charging order if an adjudicator determines that the contractor is owed money for the infrastructure it has built and the owner is an "associate" of the developer.
For infrastructure utilities, much of the land that is traversed by the infrastructure is permitted through an easement or an encumbrance over the land. The definition of "construction site" is any estate or interest in land on which the contractor carries out the construction works. The developer's easements may be caught by this definition, and a charging order issued over those lands.
In order for a charging order to be issued under the Construction Contracts Act 2002 (the Act), the contractor's notice of adjudication must seek the adjudicator's approval for the issuing of a charging order over the construction site. It must be served on the developer, and if the owner of the land that forms part of the construction site is an "associate" of the developer, the owner must also be served and given the opportunity to participate in the defence of the contractor's claim as a party (although not necessarily as a respondent).