ºÃÉ«ÏÈÉúTV

In Clash points of 29 September 2000, Clare Edwards and Ann Minogue debated the implications under construction contracts of the recent national fuel crisis. I recall a similar debate in this journal in 1991 on whether the Gulf crisis would amount to an "outbreak of hostilities" under the old clause 32.1 of JCT80. Of which more later.

The comments of Mesdames Edwards and Minogue were timely as claims are churning away as this goes to print. Not surprisingly given that under all the JCT derivates, and most other industry standard forms, there are "relevant events" analogous to clause 25.4.4 of JCT98, the civil commotion clause.

As Minogue suggests, one might be excused for believing 25.4.4 was the provision contractors should plump for. Yet the tanker drivers' action, as Minogue rightly said, does not appear to fall within this provision.

For a start, civil commotion to most insurance lawyers means a stage between a riot and a civil war; at least so said Lord Justice Luxmoore in Levy vs Assicurazioni Generali [1940]. The phrase was defined as meaning an insurrection of people for general purposes, though not amounting to rebellion, with an element of tumult as an essential prerequisite plus a sprinkling of conspiracy to commit criminal acts. So it is a non-starter.

As for "strikes", the position is rather warmer, as it covers circumstances affecting the contractor and its work but also those engaged in preparing or transporting any goods and materials required for the Works. As the wording covers unofficial and unofficial strikes, working to rule and other obstructive practices that fall short of a strike, it has an attraction at first blush.

However I concur with Minogue that a strike or other event must be one in which the trades mentioned are directly involved. That means engaged in some way with the works as distinct from individual tradespeople caught up in the disruption caused by tanker drivers, which has a wider application and a rather more indirect linkage to the works.

As for "local combination of workmen", I am of the view that it is too remote from the activities of construction since images of hauliers' lorries blocking refineries is far removed from brickies standing by the employer's gate.

And we have to thank Mr Justice Bailhache, who nearly 90 years ago, held that force majeure did not cover delay caused by football matches or funerals

Edwards rightly anticipated that contractors would argue that the fuel shortages amount to force majeure which has a rather wider meaning than the common law concept of act of God. Yet under the JCT, the term has a much narrower meaning, because things like war, strikes and fires are dealt with elsewhere. And we have to thank Mr Justice Bailhache, who nearly 90 years ago held that force majeure did not cover delay caused by football matches or funerals.

So, although war, inundations and epidemics are said to be force majeure, a force majeure clause must still be construed with close attention to the works which proceed or follow it; which strongly suggests it would be of no help to contractors – a point reinforced if clause 25.4.10, which concerns the unavailability of labour or materials, is deleted.

Which brings me back to "outbreak of hostilities", a term which has curiously been deleted from JCT98. Judge Goddard decided the test of determining whether hostilities between China and Japan was war had to be answered from the understanding of a tramp steamer captain, who found 500 000 troops fighting in Shanghai. The judge determined the captain would say: "There is a war going on and I must hotfoot it from Shanghai with my ship".

Ergo there was a war.

Any contractor considering whether his force majeure clause entitles him to suspend or postpone performance should have had no fear there was a war in the Gulf and I think most lawyers agreed last time round that the extent of the call out did not amount to mobilisation.