We reviewed the Scottish Court of Appeal’s comments about concurrency last month. Another issue which arose in the City Inn case related to clause 13.8 which contained a time bar clause, requiring the contractor to provide details of the estimated eff ect of an instruction within ten days. The Judge, at fi rst instance, characterised the clause thus:  

“I am of opinion that the pursuers’ right to invoke clause 13.8 is properly characterized as an immunity; the small defenders have a power to use that clause to claim an extension of time, and the pursuers have an immunity against that power if the defendants do not fulfi l the requirements of the clause.”  

Shepherd had provided a timely, but non-compliant notice. However, the Judge had held that this did not defeat Shepherd’s claim. This was because, whilst the employer (in discussions with the contractor) and the architect ( by issuing delay notices) had both made it clear that the contractor was not getting an extension of time, neither gave the failure to operate clause 13.8 as a reason. They therefore waived their right to object on this basis at court.  

City Inn’s appeal was dismissed on this issue as well. As a fi rst point, the Scottish CA agreed that it was possible for City Inn to waive its right to rely on the time bar clause. Under clause 13.8, the employer enjoyed the benefi t of a provision which was designed to provide a degree of protection against the (often unforeseen) consequences of a variation.  

That said, the CA also decided that the architect did not have implied authority to waive, on behalf of City Inn, the right to rely on the time bar clause. This was because clause 13.8 was more than a procedural provision. The time bar clause was therefore said to have a substantive eff ect.  

The CA then considered what had happened at the meetings in question. The CA was quite clear that the issue of delay was discussed at the meeting and further it was quite clear that although there was discussion about the merits of that claim, there was no discussion about the possible invocation of the time bar clause.  

Accordingly, the CA concluded that the representatives of City Inn who attended the meeting would be presumed to be aware of the terms of the contract and their silence in relation to the time bar point could (and did) amount to a waiver of the time bar clause.  

Finally the CA had to consider whether Shepherd had acted in reliance on the waiver. The CA held that it was not necessary for a party relying on waiver to show that it had suff ered any prejudice; it was suffi cient for it to have acted in accordance with the waiver. And that is what had happened here, Shepherd simply continued to maintain their claim in the usual way, despite the fact that had the time bar clause been operated, that claim would have been barred from the outset.  

Amongst the other points appealed by City Inn was the suggestion that an architect must generally be deemed to know all the terms and provisions of the contract. The Scottish Court did not fi nd this an attractive argument. An architect is responsible for a wide range of decision making in connection with the administration of the contract, therefore that same architect must generally be presumed to know the terms of a contract for the operation of which they were responsible.