This case concerned the costs to be taken into account when deciding whether the conditions for implementing so-called defensive enforcement have been met.

Defensive enforcement is an opportunity for a contractor to resume the works if the builder, or the main/general contractor, has refused a justified claim for a deadline extension. Since the contractor will require its costs for such enforcement to be replaced by its counterparty, the standard contracts impose a limit on the amount of costs such enforcement may incur. In this regard, it is important to have clarified what costs are to be included.

In this case, which was a total subcontract based on NS 8417, the total subcontractor had not included supposed costs of “plunder and heft” or “inefficient operation”. These are costs that result from disadvantages that the forging itself causes to other works, and which were not included in the general subcontractor's calculation of the assumed costs for the work itself.

Forcing is normally accomplished by increasing staffing to recoup the relevant delay.

In NS 8417, the provision on defensive enforcement is included in paragraph 33.8. This provision applies equally to all standard contracts.

In order for the contractor to be able to implement such a defensive measure to avoid the risk of day mulch, the cost of maintenance cannot be assumed to cost more than the amount of daylight mulch that might otherwise be applicable, added 30%.

It is not an absolute requirement that the final bill at forsertion will not be higher, in fact. What is crucial is whether the judgment used in estimating the amount of future investment costs was sound.

In this case, the contractor had not factored in the supposed costs of inefficient operation (plunder and heft). The question before the Supreme Court was whether these costs should have been included in the calculation, and the answer to that was positive.

After that, the part of the judgment of the Court of Appeal which concerned the presumed amount of the costs of enforcement as a basis for enforcement was repealed. That question was sent back to the Court of Appeal, which is due to hear this a second time. If the Court of Appeal concludes that the assumed costs were higher than the limit on the assumed daily allowance of 30%, the question becomes whether the contractor's exercise of discretion was nevertheless justified. If the answer is negative, the Court of Appeal must decide what the consequences are.

In our view, the consequence can be one of three:

1. The whole requirement for forsertion surcharges falls away

2. The contractor may replace the part corresponding to the assumed daily mulch added 30%

3. As option 2, but with a discretionary deduction in the part of the claim that exceeds this amount.

We have the most faith in option No 3, but it will be exciting to see.

This case concerned the costs to be taken into account when deciding whether the conditions for implementing so-called defensive enforcement have been met.

Defensive enforcement is an opportunity for a contractor to resume the works if the builder, or the main/general contractor, has refused a justified claim for a deadline extension. Since the contractor will require its costs for such enforcement to be replaced by its counterparty, the standard contracts impose a limit on the amount of costs such enforcement may incur. In this regard, it is important to have clarified what costs are to be included.

In this case, which was a total subcontract based on NS 8417, the total subcontractor had not included supposed costs of “plunder and heft” or “inefficient operation”. These are costs that result from disadvantages that the forging itself causes to other works, and which were not included in the general subcontractor's calculation of the assumed costs for the work itself.

Forcing is normally accomplished by increasing staffing to recoup the relevant delay.

In NS 8417, the provision on defensive enforcement is included in paragraph 33.8. This provision applies equally to all standard contracts.

In order for the contractor to be able to implement such a defensive measure to avoid the risk of day mulch, the cost of maintenance cannot be assumed to cost more than the amount of daylight mulch that might otherwise be applicable, added 30%.

It is not an absolute requirement that the final bill at forsertion will not be higher, in fact. What is crucial is whether the judgment used in estimating the amount of future investment costs was sound.

In this case, the contractor had not factored in the supposed costs of inefficient operation (plunder and heft). The question before the Supreme Court was whether these costs should have been included in the calculation, and the answer to that was positive.

After that, the part of the judgment of the Court of Appeal which concerned the presumed amount of the costs of enforcement as a basis for enforcement was repealed. That question was sent back to the Court of Appeal, which is due to hear this a second time. If the Court of Appeal concludes that the assumed costs were higher than the limit on the assumed daily allowance of 30%, the question becomes whether the contractor's exercise of discretion was nevertheless justified. If the answer is negative, the Court of Appeal must decide what the consequences are.

In our view, the consequence can be one of three:

1. The whole requirement for forsertion surcharges falls away

2. The contractor may replace the part corresponding to the assumed daily mulch added 30%

3. As option 2, but with a discretionary deduction in the part of the claim that exceeds this amount.

We have the most faith in option No 3, but it will be exciting to see.

This case concerned the costs to be taken into account when deciding whether the conditions for implementing so-called defensive enforcement have been met.

Defensive enforcement is an opportunity for a contractor to resume the works if the builder, or the main/general contractor, has refused a justified claim for a deadline extension. Since the contractor will require its costs for such enforcement to be replaced by its counterparty, the standard contracts impose a limit on the amount of costs such enforcement may incur. In this regard, it is important to have clarified what costs are to be included.

In this case, which was a total subcontract based on NS 8417, the total subcontractor had not included supposed costs of “plunder and heft” or “inefficient operation”. These are costs that result from disadvantages that the forging itself causes to other works, and which were not included in the general subcontractor's calculation of the assumed costs for the work itself.

Forcing is normally accomplished by increasing staffing to recoup the relevant delay.

In NS 8417, the provision on defensive enforcement is included in paragraph 33.8. This provision applies equally to all standard contracts.

In order for the contractor to be able to implement such a defensive measure to avoid the risk of day mulch, the cost of maintenance cannot be assumed to cost more than the amount of daylight mulch that might otherwise be applicable, added 30%.

It is not an absolute requirement that the final bill at forsertion will not be higher, in fact. What is crucial is whether the judgment used in estimating the amount of future investment costs was sound.

In this case, the contractor had not factored in the supposed costs of inefficient operation (plunder and heft). The question before the Supreme Court was whether these costs should have been included in the calculation, and the answer to that was positive.

After that, the part of the judgment of the Court of Appeal which concerned the presumed amount of the costs of enforcement as a basis for enforcement was repealed. That question was sent back to the Court of Appeal, which is due to hear this a second time. If the Court of Appeal concludes that the assumed costs were higher than the limit on the assumed daily allowance of 30%, the question becomes whether the contractor's exercise of discretion was nevertheless justified. If the answer is negative, the Court of Appeal must decide what the consequences are.

In our view, the consequence can be one of three:

1. The whole requirement for forsertion surcharges falls away

2. The contractor may replace the part corresponding to the assumed daily mulch added 30%

3. As option 2, but with a discretionary deduction in the part of the claim that exceeds this amount.

We have the most faith in option No 3, but it will be exciting to see.

This case concerned the costs to be taken into account when deciding whether the conditions for implementing so-called defensive enforcement have been met.

Defensive enforcement is an opportunity for a contractor to resume the works if the builder, or the main/general contractor, has refused a justified claim for a deadline extension. Since the contractor will require its costs for such enforcement to be replaced by its counterparty, the standard contracts impose a limit on the amount of costs such enforcement may incur. In this regard, it is important to have clarified what costs are to be included.

In this case, which was a total subcontract based on NS 8417, the total subcontractor had not included supposed costs of “plunder and heft” or “inefficient operation”. These are costs that result from disadvantages that the forging itself causes to other works, and which were not included in the general subcontractor's calculation of the assumed costs for the work itself.

Forcing is normally accomplished by increasing staffing to recoup the relevant delay.

In NS 8417, the provision on defensive enforcement is included in paragraph 33.8. This provision applies equally to all standard contracts.

In order for the contractor to be able to implement such a defensive measure to avoid the risk of day mulch, the cost of maintenance cannot be assumed to cost more than the amount of daylight mulch that might otherwise be applicable, added 30%.

It is not an absolute requirement that the final bill at forsertion will not be higher, in fact. What is crucial is whether the judgment used in estimating the amount of future investment costs was sound.

In this case, the contractor had not factored in the supposed costs of inefficient operation (plunder and heft). The question before the Supreme Court was whether these costs should have been included in the calculation, and the answer to that was positive.

After that, the part of the judgment of the Court of Appeal which concerned the presumed amount of the costs of enforcement as a basis for enforcement was repealed. That question was sent back to the Court of Appeal, which is due to hear this a second time. If the Court of Appeal concludes that the assumed costs were higher than the limit on the assumed daily allowance of 30%, the question becomes whether the contractor's exercise of discretion was nevertheless justified. If the answer is negative, the Court of Appeal must decide what the consequences are.

In our view, the consequence can be one of three:

1. The whole requirement for forsertion surcharges falls away

2. The contractor may replace the part corresponding to the assumed daily mulch added 30%

3. As option 2, but with a discretionary deduction in the part of the claim that exceeds this amount.

We have the most faith in option No 3, but it will be exciting to see.

This case concerned the costs to be taken into account when deciding whether the conditions for implementing so-called defensive enforcement have been met.

Defensive enforcement is an opportunity for a contractor to resume the works if the builder, or the main/general contractor, has refused a justified claim for a deadline extension. Since the contractor will require its costs for such enforcement to be replaced by its counterparty, the standard contracts impose a limit on the amount of costs such enforcement may incur. In this regard, it is important to have clarified what costs are to be included.

In this case, which was a total subcontract based on NS 8417, the total subcontractor had not included supposed costs of “plunder and heft” or “inefficient operation”. These are costs that result from disadvantages that the forging itself causes to other works, and which were not included in the general subcontractor's calculation of the assumed costs for the work itself.

Forcing is normally accomplished by increasing staffing to recoup the relevant delay.

In NS 8417, the provision on defensive enforcement is included in paragraph 33.8. This provision applies equally to all standard contracts.

In order for the contractor to be able to implement such a defensive measure to avoid the risk of day mulch, the cost of maintenance cannot be assumed to cost more than the amount of daylight mulch that might otherwise be applicable, added 30%.

It is not an absolute requirement that the final bill at forsertion will not be higher, in fact. What is crucial is whether the judgment used in estimating the amount of future investment costs was sound.

In this case, the contractor had not factored in the supposed costs of inefficient operation (plunder and heft). The question before the Supreme Court was whether these costs should have been included in the calculation, and the answer to that was positive.

After that, the part of the judgment of the Court of Appeal which concerned the presumed amount of the costs of enforcement as a basis for enforcement was repealed. That question was sent back to the Court of Appeal, which is due to hear this a second time. If the Court of Appeal concludes that the assumed costs were higher than the limit on the assumed daily allowance of 30%, the question becomes whether the contractor's exercise of discretion was nevertheless justified. If the answer is negative, the Court of Appeal must decide what the consequences are.

In our view, the consequence can be one of three:

1. The whole requirement for forsertion surcharges falls away

2. The contractor may replace the part corresponding to the assumed daily mulch added 30%

3. As option 2, but with a discretionary deduction in the part of the claim that exceeds this amount.

We have the most faith in option No 3, but it will be exciting to see.