A CONTRACTOR’S DUTY TO CARRY OUT THE WORKS ‘REGULARLY AND DILIGENTLY’. WHAT DOES IT MEAN?

Many forms of construction contract place an onus on the Contractor to carry out the works "regularly and diligently" and contain provisions for cancellation of the contract if he fails to do this.

For example clause 15.3 of the JBCC Series 2000 Principal Building Agreement requires the Contractor to "proceed with due skill, diligence and regularity" to complete the works.

But what do the words "regularly and diligently" actually mean?

In the case of West Faulkner Associates v London Borough of Newham (1992) the Borough had employed William Moss as the main Contractor to carry out certain refurbishment works to one of their housing estates, under conditions which required them to perform the work "regularly and diligently".

Although Moss provided adequate quantities of materials and labour to the site, the work was not carried out in accordance with detailed schedules which had been prepared on behalf of the employer.

His Honour Judge John Newey CC held that Moss had failed to proceed "regularly and diligently" in accordance with the requirements of the contract. He held that a Contractor who merely showed that he was personally industrious according to his own standards, or who used his actual resources to the best of his ability, could nevertheless be in breach of an obligation to proceed regularly and diligently if he fell short of the general standard expected of Contractors in his position or did not satisfy the demands of the particular contract on which he was employed.

He found that the requirement to carry out works "regularly and diligently" meant that Contractors should:

"go about their work in such a way as to achieve their contractual obligations. This requires them to plan their work, to lead and manage their workforce, to provide sufficient and proper materials and to employ competent tradesmen, so that the works are fully carried out to an acceptable standard and that all time sequence and other provisions of the contract are fulfilled.

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