Notes · Delay · right of access

When the site isn't yours to build on

A contractor mobilises to build a new railway — crews staged, plant running. But the alignment is not clear: old track and live services still sit on ground the Employer was bound to hand over. Under Sub-Clause 2.1 the delay is the Employer's, not the Contractor's — and this note shows how you prove it: notify early, record relentlessly, and quantify with a defensible delay analysis. Illustrated by a fifty-second film.

The story in ten seconds — the full narrated explainer is below.

The prevention principle, in fifty seconds.

A contractor mobilises to build a new railway — crews staged, plant running, the programme says go. But the alignment is not clear: old track and live services still sit on ground the Employer was bound to hand over. Work cannot start. It is one of the most common grounds for an extension of time, and one of the clearest in law.

The rule

Under FIDIC Sub-Clause 2.1, the Employer must give right of access to and possession of the Site — removing pre-existing obstacles is part of that duty. Behind the clause sits the prevention principle: a party cannot hold the other to a completion date its own act or omission made impossible. The entitlement runs to time and cost— an extension under Sub-Clause 8.4, plus the prolongation and disruption that idle resources generate.

How the claim is won

Entitlement in principle is the easy part. Claims turn on substantiation— proving, with contemporaneous evidence, that this cause produced that effect:

Notify early, and keep notifying (Sub-Clause 20.1). A right held on paper from day one is worth more than an argument assembled years later.
Build a contemporaneous spine— an obstacle register, daily site reports, meeting minutes and photographs that record each impediment as it happens.
Tie cause to effect— the impediment sat on specific critical-path activities, and their slippage drove the completion milestone.
Quantify with a Time Impact Analysis from a verified baseline: the delay actually suffered, plus the resolution still to come, isolated event by event.
Show mitigation, and hold the Engineer to the fair-determination duty under Sub-Clause 3.5.

Notify early. Record relentlessly. Prove cause and effect.