In the UK the concept of "force majeure" does not have an independent meaning in law. However, it is nevertheless used in contracts. The two standard form contracts most commonly used in the UK construction industry are the JCT and NEC. Both contracts approach this topic slightly differently.
Force majeure is a Relevant Event in the JCT 2016 contracts, giving the Contractor a potential entitlement to an extension of time. The exercise of statutory powers by the UK Government or relevant authorities after the "Base Date" (a date specified in the contract) is also a Relevant Event if it directly affects the execution of the Works. However, there is currently some debate whether at this time these statutory powers have been exercised.
In order to be entitled to a payment of money, the contractor has to point to a Relevant Matter or Changes. In the future there might be acts of prevention, such as delayed instructions or designs, which would classify as Relevant Matters. Also changes in statutory requirements after the "Base Date" may lead to Changes.
Under the NEC contracts, the situation is different. Although force majeure is not a term used or defined in the NEC it does deal with the concept of prevention which is similar. Clause 19 and the compensation event at clause 60.1(19) set out criteria that need to be fulfilled to establish whether there is a prevention event. These criteria are:
- the event must either have stopped the Contractor completing the works or caused a delay;
- neither party could have prevented it; and
- an experienced contractor would have judged, at the Contract Date, to have had such a small chance of occurring that it would have been unreasonable for the Contractor to have allowed for it.
The change of law provision is optional at X2 in the NEC contract suite. If X2 applies, then specific restrictions such as those under the Coronavirus Act 2020 would be a compensation event allowing time and money.