The times this phrase has headlined the construction industry, you would have thought there is an understanding of what it is and a standard definition incorporated in the main forms of construction contracts (JCT, NEC and FIDIC). In an ideal world this would be the case, but in the current construction industry, no.

There is no standard definition of force majeure in English law, and it was first introduced in Lebeaupin v Richard Crispin and Company [1920] 2 K.B.714, which stated a "force majeure clause should be construed in each case with close attention to the words which precede or follow it, and with a due regard to the nature and general terms of the contract. The effect of the clause may vary with each instrument."

This provides open interpretation as to what force majeure actually means, and despite the lapse of time from 1920 until now, there is no standard definition used in construction contracts.

So, if there is no standard definition, what is the contractual approach to force majeure events and claims arising from them? Are Contractors always entitled to extensions of time? What about extra costs?

The answers depend on the specific form of contract, and a summary of the key contracts is set out in the table below.

Form of Contract

Approach to Force Majeure

JCT ICD with Contractor's Design 2016

No specific definition of force majeure, but it is included within the definition of a "Relevant Event" and allows the contractor to claim an extension of time where a force majeure event arises, provided certain conditions are complied with. Contractor has entitlement to time not costs.

JCT Design and Build Contract 2016

Same as above.

JCT Management Contract 2016

No specific definition of force majeure, nor is it deemed a "relevant event", which means the contractor does not have a right to claim an extension of time. However, force majeure is considered a ground for termination.

NEC4 Engineering and Construction Contract 2017

No definition of force majeure, but it falls within the definition of "Compensation Events" and the Contractor may be entitled to an extension of time and extra costs, where specific conditions are complied with.

NEC4 Design, Build and Operate 2017

Same as above.

FIDIC MDB Harmonised Edition (Pink) 2010

Defines "Force majeure" as "an exceptional event or circumstance:

a) which is beyond a Party's

control;

b) which such Party could

not reasonably have provided against before entering into the Contract;

c) which, having arisen, such Party could not

reasonably have avoided

or overcome, and

d) which is not substantially

attributable to the other Party.

Force majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as conditions a) to d) above are satisfied:

i) war, hostilities (whether war be declared or not), invasion, act of foreign enemies;

ii) rebellion, terrorism, sabotage by persons other than the Contractor's Personnel, revolution, insurrection, military or usurped power, or civil war

iii) riot, commotion, disorder, strike or lockout by persons other than the Contractor's Personnel

iv) munitions of war, explosive materials, ionising radiation or contamination by radio- activity, except as may be attributable to the Contractor's use of such munitions, explosives, radiation or radio-

activity, and

v) natural catastrophes such

as earthquake, hurricane, typhoon or volcanic activity."

Contractor may be entitled to extensions of time where completion is delayed, and may be entitled to extra costs under certain circumstances.

Going forward, how should parties ensure there is no ambiguity as to whether or not force majeure is applicable to the contract and the impact of this?

Simple. Ensure your contract is amended to cover force majeure events, and any extensions of time are granted where it is fair and reasonable. Discuss and agree a definition that is suitable to the project and the scope of the works and the way in which works re to be carried out, and possibly location. The definition needs to be agreed and understood.

Force Majeure was discussed in our webinar on 23 April 2020 with Bill Barton. Click here to view the webinar and detailed notes.

How can Barton Legal help?

At Barton Legal we have extensive experience in all the standard contract forms, including JCT as well as NEC, IChemE, and FIDIC.

We believe that an increased understanding of contractual terms and the roles and responsibilities of all parties ensures a successful conclusion to a project, which is why we always use plain English and ensure you understand and can apply the terms of your contract.

Our aim is to reduce legal gobbledegook and increase collaboration between parties to increase the prospects of completing your project on time and on budget

We place great emphasis in the early stages of the contract on understanding and preparing thoroughly, in order to avoid costly disputes later.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.