| Date | 28 March 2007 |
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| Judgment | Kitson Sheet Metal Ltd v Matthew Hall Mechanical and Electrical Engineers Ltd (1989) 47 BLR 82; Pigott Foundations Ltd v Shepherd Construction Ltd (1993) 67 BLR 48; Ascon Contracting Limited v Alfred McAlpine Construction Isle of Man Ltd (1999) |
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| The Issue | Whether a sub-contractor must work to a main contractor’s programme. |
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| Implication |
Where there are no express provisions within a sub-contract requiring a sub-contractor to work to a main contractor’s programme and where such a programme is not a sub-contract document, then neither the sub-contractor or the main contractor is likely to be able to rely on a main contractor’s programme for establishing a claim against the other. |
printThe question considered in this article is whether a sub-contractor must work to a main contractor’s programme. The answer to this old question will depend upon the particular terms of the sub-contract. Main contractors will usually want the flexibility to be able to co-ordinate and possibly rearrange the detailed sequence of sub-contractors’ work to take account of actual progress, without incurring claims as a consequence. If a main contractor makes compliance by the sub-contractor with its master programme a condition of a sub-contract then this may result in claims from the sub-contractor if the main contractor fails to comply with that master programme. At its least prescriptive, a sub-contract may require the sub-contractor to provide its works in accordance with the main contractor’s progress. If a sub-contractor accepts this type of obligation, then it is unlikely that it will be able to rely upon a main contractor’s programme as the basis for making a claim. In Kitson Sheet Metal Ltd v Matthew Hall Mechanical and Electrical Engineers Ltd (1989) ORB, Kitson made claims against Matthew Hall for variations to the manner or sequence of working in connection with mechanical work at Terminal 4 of Heathrow Airport. Kitson alleged that Matthew Hall had failed to make available the works in accordance with a programme provided by Matthew Hall. The sub-contract order was agreed after the work commenced at which point it had retrospective effect. Clause 18(1) required the sub-contractor to commence when instructed and to proceed with due diligence and without any delay, and to complete the works within the periods stated in the sixth schedule. The sixth schedule contained no periods and made no reference to the programme but instead required that the works be carried out in accordance with the dictates or instructions of Matthew Hall’s site management, to enable the mechanical works to be handed over by 18 March 1985. The judge observed that the parties had an overall objective in a date for handover but in achieving it there had to be the utmost flexibility. The circumstances were such that the parties recognised that the likelihood of delays and of trades getting in each others’ way was very great and the prospects of being able to work to a programme were small. HHJ Newey QC concluded that Kitson was not entitled to work to a programme, and that Matthew Hall was entitled to give Kitson instructions as required and that there could not be a variation based on a change in manner or sequence of work. It is more common for a sub-contractor to be procured simply on the basis of a sub-contract period with an obligation to commence within an agreed notice period following notice from the main contractor. But this also is not without difficulty. In Pigott Foundations Ltd v Shepherd Construction Ltd (1993) ORB, Pigott entered into a sub-contract with Shepherd to undertake piling work to a 14-storey office block in Coventry in accordance with a contract that incorporated the JCT Standard Form of Domestic Sub-contract DOM/1, 1980 Edition. The piling works were completed late and one of the issues to be decided was whether Shepherd could counterclaim against Pigott for its failure to execute its work within the original period for carrying out and completing the sub-contract works, and in particular whether Shepherd could claim for consequences of the Pigott’s slow progress during the contractual period. An example was that Shepherd’s master programme showed the commencement of foundations in one area commencing two weeks after the start of piling. HHJ Gilliland QC found that the master programme was not a contract document and that there was no specific provision within the contract that required Pigott to carry out its piling work so as to enable Shepherd to carry out its work as shown on the master programme. The judge considered the meaning of clause 11.1 that required the sub-contractor to carry out and complete the sub-contract works “reasonably in accordance with the progress of the Works”. He decided that this did not require the sub-contractor to comply with the main contractor’s programme nor did it entitle the main contractor to claim that the sub-contractor must finish or complete a particular part of the sub-contract works by a particular date to enable the main contractor to proceed with other parts of the works. He said however that the words do require the sub-contractor to carry out its work in a manner that would not unreasonably interfere with the actual carrying out of other works that can conveniently be carried out at the same time. The judge also considered the effect of clause 11.8 that required that the sub-contractor should use its best endeavours to prevent delay in the progress of the sub-contract works or any part thereof, and to prevent any such delay resulting in delay to the completion of the sub-contract works beyond the period or periods for completion. He decided that this did not impose upon the sub-contractor any obligation to carry out the work in any particular order or at any specific rate of progress and that this did not modify the general principle established in Wells v Army & Navy Co-operative Society (1902) that a contractor is entitled to plan and perform the work as he pleased provided that he completed it when required by the contract. The decision in Pigott was followed in the later case of Ascon Contracting Limited v Alfred McAlpine Construction Isle of Man Ltd (1999). If a sub-contractor is required to comply with a main contractor’s master programme or to perform in accordance with a particular sub-contract programme, then this it is likely to provide greater certainty for both the main contractor and the sub-contractor as to the interfaces with other sub-contractors and the time for performance and the sequencing of the work by the sub-contractor. However, a programme is rarely made a contract document in practice because a failure by either party to comply with it will almost certainly amount to a breach of contract. The effective management of interfaces between sub-contractors is the stock-in-trade of the main contractor, but it is clear that specific terms within the sub-contract conditions will be required to create specific obligations as to performance in relation to such interfaces.
CJ-0712
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