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The New Year is a good time to remind ourselves of what happens when there is delay to the Completion Date under JCT 2011. It of course depends on who is responsible for the delay.
1. Where the contractor is responsible, a Non-Completion Certificate should be issued. If the contract provides for liquidated and ascertained damages ("LADs") then provided the employer has notified the contractor that it intends to levy LADs it can claim them from the contractor. Often the employer deducts the LADs from sums otherwise due to the contractor. That is ok, provided a withholding notice or pay less notice (as appropriate) has been served in time.
2. Where the employer is responsible and one of the Relevant Events listed in the contract has occurred, an extension of time should be granted and a later date for the Completion Date should be fixed. This means that the employer is not entitled to claim LADs. However it does not automatically mean the contractor is entitled to loss and expense. To claim loss and expense the contractor must show that a Relevant Matter has occurred. Remember not all Relevant Events are Relevant Matters. The contractor also has to prove the loss and expense that he has suffered.
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