Force Majeure in English Law: A Construction Industry Perspective

Sophie Bennett, Associate at Holmes & Hills, explores how force majeure operates in English construction law and considers the risks of relying on an undefined contractual term in JCT contracts.

Force majeure is one of the most frequently misunderstood concepts in construction law. Unlike many civil law jurisdictions, English law does not recognise force majeure as a freestanding legal doctrine. There is no default statutory or common law definition, and the term carries no inherent legal meaning. Its effect depends entirely on the wording of the contract in which it appears. For the construction industry, where the JCT contract suite has included force majeure as a Relevant Event for decades, this creates a curious tension - a term of importance resting on uncertain foundations.

Force Majeure in English Law: No Default Doctrine

In French law, from which the term originates, force majeure is a well-established legal concept with a defined scope, broadly encompassing events that are unforeseeable, irresistible, and beyond the control of the parties. English law offers no equivalent.

This means that where a contract refers to force majeure without defining it, the courts are left to construe the term by reference to its context and the surrounding contractual language, which is an inherently uncertain exercise. As a result, best practice in English law is to define force majeure expressly. Notably, the JCT contract suite has not done so, meaning that force majeure is either amended or frequently removed from the list of Relevant Events entirely.

Force Majeure in the JCT Contracts

The JCT Design and Build Contract (and the wider JCT suite) lists force majeure as a Relevant Event entitling the Contractor to an extension of time under the delay provisions. However, the JCT contracts have never included a definition of the term.

In the absence of a contractual definition, parties and adjudicators must fall back on general principles of contractual interpretation. The prevailing view, drawn from case law and leading textbooks, is that force majeure in the JCT context is likely to be construed as encompassing events that are:

• Beyond the control of the party seeking to rely on it
• Unforeseeable, or at least not reasonably foreseeable at the date of the contract
• Unavoidable, in the sense that reasonable steps could not have been taken to prevent or mitigate the event or its consequences

However, the precise meaning remains unclear. Without a definition, each case turns on its own facts, and certainty is not guaranteed.

The COVID-19 Test

The pandemic brought the inadequacy of undefined force majeure into focus. Many contractors on JCT contracts sought extensions of time on the basis that COVID-19 and the associated government restrictions constituted force majeure. While the argument was understandable, the lack of a definition meant there was no guaranteed relief. Parties were left to argue, and many disputes were resolved through negotiation rather than adjudication, not because the merits of both arguments were clear, but because both sides recognised the uncertainty of their position.

It is telling that the JCT 2024 edition responded to this experience not by defining force majeure, but by introducing a separate, express Relevant Event for epidemics and pandemics. Force majeure remains undefined in the 2024 suite, and this perhaps indicates that force majeure is to be used for greater events and effects that almost entirely frustrate a contract.

Practical Guidance for the Construction Industry

Parties entering into JCT contracts should consider the following:

• Define the term: If force majeure is to appear in the contract, define it. A clear, comprehensive definition removes the need for judicial interpretation and gives both parties certainty as to the scope of the clause.
• Consider specific risk events: Rather than relying on a catch-all concept, parties may benefit from identifying and listing the particular risk events they wish to address (such as sanctions, cyberattacks etc.) and allocating risk accordingly.
• Costs: Under the JCT suite, force majeure is a Relevant Event but not a Relevant Matter. Contractors seeking financial relief for force majeure events will need to negotiate bespoke amendments.
• Maintain records: Any party seeking to rely on force majeure must be prepared to demonstrate the link between the event and the delay experienced. Contemporaneous records are essential.

Conclusion

Force majeure occupies an unusual position in English construction law: a term of French origin, with no inherent legal meaning, embedded in one of the most widely used standard form contracts in England and Wales, yet not defined. Parties are well advised to take matters into their own hands and define force majeure clearly in their contracts, rather than relying on a concept that promises more certainty than it delivers.