Coronavirus and construction: the law and practical actions

COVID-19 will never need an introduction, and 2020 will be forever dominated by discussing what happened. In construction circles the early months of 2020 were dominated by the need to review contracts and make quick decisions on how to proceed. Jon Miller summarises the key practical points that emerged.


The key points to bear in mind re coronavirus and construction contracts are:

  • force majeure clauses (unsurprisingly they turn on the wording of the clause);
  • notices, and when to give them;
  • record keeping/evidence;
  • other coronavirus related Relevant Events/Relevant Matters which could give rise to time and money;
  • what to do with contracts that are about to be signed. 

Force majeure

The contract wording is crucial

There is no established meaning in English law of “force majeure” and every force majeure clause turns on the words used. In broad terms most force majeure clauses:

  • suspend the obligation to perform the Contract when a force majeure event has occurred (contrast this with Frustration which discharges the Contract completely)1; and
  • the event must be beyond the control of the party relying on the clause.

Force majeure will only apply if there is a force majeure clause in the Contract. Force majeure excuses what would probably otherwise be a breach and effectively suspends temporarily an obligation to perform the Works, but it may not give rise to any compensation/loss and expense (e.g. a JCT Contract), unless the Contract provides otherwise (e.g. NEC3/4). 

Force majeure clauses tend to be interpreted literally – they have been described as “An exemption clause that must be construed strictly”.2

“Beyond the contractor’s control” 

Unsurprisingly authors of contracts find it difficult to list every event which may have an impact on the Contract, and force majeure clauses normally contain a list of events, with a sweep-up phrase such as “and any other clause beyond the Contractor’s reasonable control”. In a case where a clause which exonerated a party to a contract “In the case of strikes, lockouts, civil commotions, or any other causes or accidents beyond the control of the consignee”, it was held that “strikes, lockouts” still had to be “beyond the control of the consignee”.3


In a contract which provided for its cancellation where delivery of goods was “impossible”, the fact that new government regulations prevented exports of the goods halfway during a delivery window did not amount to force majeure. The Court held that under the Contract delivery could have taken place prior to the prohibition of products by the Italian Government earlier in the delivery period. In keeping with the principle that the words of any force majeure clause need to be looked at closely, a requirement rendering performance to be “impossible” before it did not have to be performed imposed a very high hurdle which the party relying on the clause could not overcome; they could have delivered the goods prior to the prohibition coming into force.


Another example of the importance of the words used is a clause where delivery was suspended for reasons beyond the buyer’s or the seller’s control, which ultimately resulted in “preventing or hindering” delivery. The Court gave an indication that “prevention” is a more stringent test to overcome in that:

“‘Prevention’ in such a clause must refer to physical or legal prevention and not an economical profitableness and that ‘hindering’ must refer to an interference with the manufacture or delivery from the same cause as ‘preventing’, but interference of a less degree.”

In this case the outbreak of war did not “prevent” or “hinder” the delivery of the goods in question at all as they could be obtained from alternative suppliers, albeit at higher prices.4

More expensive/price rises

The mere fact that performance of a contract may become more expensive, e.g. via the use of alternative agency labour or suppliers, does not amount to force majeure:

“By ‘hindering’ delivery is meant interposing obstacles which it would be really difficult to overcome. I do not consider that even a great rise of price hinders delivery.”5

“… the fact that a contract has become more expensive to perform, even dramatically more expensive, is not a ground to relieve a party on the grounds of force majeure or frustration.”6

I suspect that the nature of the obligation in the underlying construction contract is relevant as to whether force majeure will come into play. For example, if a contractor can purchase sanitaryware from anywhere, and has decided to purchase this sanitaryware from China as it is cheaper, force majeure may not apply if there is the same but more expensive sanitaryware available in the UK. Contrast this with a scenario whereby a contractor has to purchase Italian marble from a particular seller within Northern Italy, and there is no alternative supplier.


There is no common law rule that a force majeure event should be unforeseeable, or in existence at the time the contract was entered into.7

However, in the absence of a general common law rule that foreseeability is a key element of force majeure, many force majeure clauses go on to state they may only be relied upon for (say) “unforeseeable” events. In one notable example, a force majeure clause referred to an “unforeseeable act or event which was beyond the reasonable control of either party”. The Court of Appeal held that the word “unforeseeable” did not add anything – if an act was not within a party’s control, it was very likely that it was also not foreseeable.8

Significantly, the force majeure clause within the JCT D&B 2016 makes no mention of foreseeability but the NEC3/4 does – see below. 

2 Entertain Video Limited and Others v Sony DADC Europe Limited and Others9

The Technology and Construction Court has recently considered the meaning of a force majeure clause which could have implications for how these clauses are interpreted within construction contracts. This concerned the riots in North London in 2011 following the shooting of Mark Duggan – a warehouse was looted and eventually burnt to the ground. The fire took 10 days to extinguish but led to damage to a large number of DVDs, CDs, etc. worth circa £40m. 

The contract for the storage/distribution of the DVDs/CDs contained a force majeure clause whereby:

“Neither party shall be liable for its failure or delay … if such failure or delay is caused by circumstances beyond the reasonable control of the party affected including but not limited to … riot, civil commotion, malicious damage … pandemic …”

Interestingly, the above clause included “pandemic” so would probably come into play in the current COVID-19 pandemic. However, here the Defendant alleged that the looting and burning down of the warehouse was “beyond the reasonable control of [the Defendant]” which included “riot, civil commotion [and] malicious damage”.

The Court held that the force majeure clause did not exonerate the Defendant who was found liable for the damage caused by the looting and the subsequent destruction of the warehouse.10

This was because:

  • the Court heard from witnesses and experts pointing out the warehouse had been broken into on occasions in the past, and the Defendant had failed to put in place sufficient safeguards against further break-ins;
  • the Defendant did not follow the relevant British Standard for protecting the warehouse from damage by fire.

Accordingly the looting and fire damage was not “beyond the reasonable control” of the Defendant, who remained liable for the damage. 

Much has been written about the interpretation of force majeure clauses in construction contracts. The 2 Entertain Video case emphasises the need to interpret the actual words used in any force majeure clause – in this case it was not a question of whether the rioting etc. was foreseeable, rather whether it was “beyond the reasonable control” of the Defendant. The Court decided it was not.


In the current climate it may be useful to rely upon a quote from Lebeaupin v Crispin and Company11 where the Court referred to a quote from a French textbook which stated, “war, inundations, and epidemics, are cases of force majeure”, with the Court adding: “This is a wide definition, but I think that it usefully though loosely suggests not only the meaning of the phrase [force majeure] as used on the Continent, but also the meaning of the phrase is often employed in English Contracts”. 

The Lebeaupin case was concerned with a clause containing a list of events which included “any cause not under the control” of the party, but emphasised that the meaning of each cause turned upon the words used:

“A force majeure clause should be construed in each case with a close attention to the words which proceed 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.” 


Unsurprisingly, one party will normally have to serve notice of force majeure on the other to benefit from a clause – in GPP Big Field LLP v Solar EPC Solutions12 one of the reasons the contractor’s claims failed was that he did not give valid notice of force majeure under the contract.


As a general rule force majeure must be the sole cause of the delay. In the 2018 case of Seadrill Garner Operations Limited v Tullow Garner Limited13 drilling operations were delayed by:

  • a drilling moratorium imposed by the Government of Ghana (a force majeure event); and 
  • Tullow’s failure to progress a drill plan in areas unaffected by the moratorium (not a force majeure event). 

The Court held that the force majeure event must be the sole cause of the default. 

However, the rule that a force majeure event has to be the sole cause of delay may not apply to a JCT Contract.

JCT Contracts14


Force majeure is a Relevant Event but not a Relevant Matter. Accordingly with existing JCT Contracts delay caused by coronavirus can give rise to an extension of time, but will not result in loss and expense as it is not a Relevant Matter.15

No definition

The real issue with a JCT Contract is that, whilst the interpretation of a force majeure clause depends on the words used, surprisingly a JCT Contract makes no attempt to define force majeure. In a case concerning a clause which stated “the usual force majeure conditions shall apply”, it was decided that this was too uncertain as force majeure clauses come in too many different varieties.16 There is no reported case as to what force majeure means under a JCT Contract. 


In my view this does not apply to force majeure under a JCT Contract. The trigger for extension of time is “the progress of the Works … is being or is likely to be delayed”,17 which in turn causes a delay to the Completion Date.18 This should probably in practice make it easier than a clause requiring performance to be “impossible” etc. as we merely need to establish that the Works are “or likely to be delayed”. This is an issue we may ultimately have to emphasise to adjudicators when looking at the authorities on force majeure, which turn on their own specific wording.

Notices – JCT

A Relevant Event notice needs to be given of force majeure when it becomes reasonably apparent that the progress of the Works is being or is likely to be delayed. This is then followed, as soon as possible thereafter, with particulars of the expected effect including an estimate of the delay to the Completion Date.19

JCT Contract –causation

As mentioned above, normally it is essential that it can be shown the force majeure event was the sole cause of one party’s failure to comply with its contractual obligations. However, I doubt as a matter of interpretation that this principle would apply to a JCT Contract. 

In broad terms, where two or more Relevant Events give rise to a delay to the Completion Date, or even when a Relevant Event and an event which the contractor is responsible for, both concurrently delay the Completion Date, then under an unamended JCT Contract this can still give rise to an extension of time. 

I have real doubts whether it needs to be established under a JCT Contract that the force majeure event was the sole reason for the delay despite the earlier authorities being quite clear on this point when force majeure events come into play. This is reinforced in JCT Contracts such as a JCT D&B 2016 which makes it clear an extension of time can be attributed to more than one Relevant Event.20

Termination – JCT

Under a JCT D&B 2016, force majeure may ultimately give rise to termination of the contractor’s employment21, that is if the suspension is due to force majeure and continues for a length of time as stated in the Contract Particulars.22

NEC 3/4

Clause 60.1.9

The NEC 3/4 contains a clause which is often described as force majeure in everything but name:

“(19) An event which

Stops the Contractor completing the works or

Stops the Contractor completing the works by the date shown on the Accepted Programme,

and which

neither Party could prevent,

an experienced contractor would have judged at the Contract Date to have such a small chance of occurring that it would have been unreasonable for him to have allowed for it and

is not one of the other compensation events stated in this contract.”23

A Compensation Event under this clause should give rise to not only an extension of time, but additional monies as well.

NEC Clause 60.1.9 –key issues

There are a few points to be borne in mind which are peculiar to the NEC:

  • The NEC introduces a degree of foreseeability in that at the “Contract Date” there must have been such a “small chance of occurring” etc.;
  • The “Contract Date” is a defined term within the NEC – “the date when this contract came into existence”.24This term is sometimes amended to a later date when the last party signs the contract;
  • The force majeure event must stop completion of the Works, or completion of the Works by the dates shown on the Accepted Programme. The NEC contains comprehensive provisions as to what the Accepted Programme should contain which frequently the Parties do not comply with. If there is no Accepted Programme then clause 60.1.9 may not apply (or at least may have some difficulty in applying). 

Termination – NEC

A force majeure event can give rise to termination under an NEC contract. Clause 91.7 allows the employer to terminate a force majeure event if the anticipated completion is more than 13 weeks after the date on the Accepted Programme.

Has a force majeure event occurred for the purposes of construction?

In England the Government has not ordered building sites to shut down. Whether a force majeure event has occurred will always turn upon the wording of the force majeure clause in the contract, and how COVID-19 has impacted the site in question. There is no guaranteed answer to this question but we need to bear the following in mind:

  • we are facing a global pandemic which has had a significant effect on the economy, transport, etc.;
  • we have been given guidance whereby, when leaving their own household, people should try to remain 2 metres apart even on a building site (where possible). This would require changes not only to different methods of working at the work place, but also amendments to canteen arrangements, welfare and changing facilities. Also at least some over the counter trade merchants are closing.

Therefore in my view under most force majeure clauses COVID-19 would probably now be seen as a force majeure event.

Next article

  • 1. But some force majeure clauses can give rise to a termination – see below.
  • 2. SHV Gas Supply & Trading SAS v Naftomar Shipping & Trading Co Inc [2006] 1 Lloyd’s Rep 163.
  • 3. Frontier International Shipping Corp v Swiss Marine Corp Inc [2005] 1 Lloyd’s Rep 390.
  • 4. Tennants (Lancashire) Limited v C S Wilson & Co (1917) UKHL 523.
  • 5. Tennants (Lancashire) v C S Wilson & Co [1917] AC 495.
  • 6. Thames Valley Power Limited v Total Gas & Power Limited [2006] 1 Lloyd’s Rep 668.
  • 7. Navron v Callitsis Ship Management SA [1988] 2 Lloyd’s Rep 416 and SVH Gas Supply & Trading SAS v Naftomar Shipping & Trading Co Inc [2005] EWHC 2528.
  • 8. Great Elephant Corp v Trafigura Beheer BV [2013] EWHCA Civ 905.
  • 9. [2020] EWHC 972 (TCC).
  • 10. Subject to limitations of liability clauses elsewhere within the underlining contract.
  • 11. 11. [1920] 2 KB 714.
  • 12. [2018] EWHC 2866.
  • 13. [2018] EWHC 1640.
  • 14. The commentary here is largely based upon a JCT 2016 D&B.
  • 15. Clause 2.26.14.
  • 16. British Electrical and Associated Industries (Cardiff) Limited v Patley Pressings Limited [1953] 1 WLF 280.
  • 17. Clause 2.24.1.
  • 18. Clause
  • 19. Clauses 2.24.1 and 2.24.2.
  • 20. Clause
  • 21. Clause
  • 22. If none is stated, the period is 2 months.
  • 23. Clause 60.1.9 – see also clause 19.1.
  • 24. Clause 11.2.4.