Is the sub-contractor obliged to work in accordance with the actual progress of the main contractor’s Works?
Prior to 2005, standard sub-contracts tended to require the contractor to carry out and complete the sub-contract works in accordance with the programme details in the sub-contract and reasonably in accordance with the progress of the Works. Many contractors assumed that, having entered into a sub-contract with a subcontractor, the sub-contractor was obliged to work when and where on the Works the contractor directed. Contractors expected to be able to telephone the sub-contractor and to secure its presence on site virtually immediately and that it would move off the site with equal speed as directed. When tested in the courts, that approach was held to be wrong. The courts decided that the sub-contractor could plan and carry out the work as it wished if the sub-contract said nothing to the contrary, but the sub-contractor must finish by the time stated in the sub-contract. The sub-contractor was not required to perform the work in any particular order or at any particular rate of progress or to finish any part of the sub-contract works by any particular date so as to enable the contractor to proceed with other parts. But the sub-contractor must not unreasonably interfere with the carrying out of other work which it was convenient to carry out at the same time. The JCT 2005 suite of sub-contracts have wording which is slightly changed from previous editions, but it is thought that the change in wording does nothing to increase the subcontractor’s obligations so far as progress is concerned, but rather confirms the position as set out by the court. The situation is not entirely one-sided. A sub-contractor has argued that a term should be implied into sub-contracts that the main contractor would make sufficient work available to enable the sub-contractors to maintain reasonable progress and to execute the work in an efficient and economic manner. That argument has been rejected by the Court of Appeal, which held that the general law had no rule implying such a term into sub-contracts. Everything depends on the precise terms of the sub-contract being used. Often such sub-contracts are not in standard form but rather sub-contracts specially written for the contractor.