Where a contractor is behind programme, is it entitled to an extension of time for exceptionally adverse weather that would not have affected on-programme work?
When exceptionally adverse weather delays a contractor that is already behind programme, employers argue the weather would have caused no delay on time. Whether that argument works decides who bears the weather risk.
Yes: exceptionally adverse weather that delays the actual progress and completion of the works gives an extension of time, and being behind programme does not defeat it, because the clause looks at the actual effect of the weather, not at a hypothetical on-programme position
Yes. Where exceptionally adverse weather delays the actual progress of the works and, through that, completion, the contractor is entitled to an extension of time, and it does not lose that entitlement because it was behind programme. The standard weather clauses ask about the weather's effect on the works, not about whether the works would have been affected on some programme the contractor was not following. The employer's argument, that on-programme the weather would have caused no delay, misreads the clause. The contractor must still prove the weather was exceptionally adverse for the time and place and that it actually delayed the work being done. Under FIDIC the entitlement is time only, without the associated cost.
| The test | Did the weather delay the actual progress and completion of the works? |
| Behind programme | Does not defeat the claim; the clause looks at actual effect |
| On-programme argument | Rejected: the clause does not ask about a hypothetical programme |
| Burden | Prove exceptionally adverse weather and its actual delaying effect |
| FIDIC | Adverse climatic conditions give time only, not the associated cost |
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