Site access and possession can be very contentious aspects of a construction project, particularly if the relationship between the parties has deteriorated due to delay or other issues. Most contracts include clauses specifically setting out dates for possessions and access rights to try to mitigate contention. Clause 3.1 of the JCT Design and Build, for example, states “The Employer’s Agent and any person authorized by him or the Employer shall at all reasonable times have access to the Works…”.
The extent of this right to access was considered in the recent case of Monty & Payter LLP v MWA Projects Limited, with implications for wherever a contract provides for access “at all reasonable times”.
Here the Employer, Monty & Payter LLP (“M&P”) applied for an injunction against its principal contractor and principal designer, MWA Project Limited (“MWA”). This requested injunction was intended to prevent MWA from restricting access to the site to working hours. Mrs Justice Joanna Smith noted in her judgement that the real purpose of the proposed injunction was “to require MWA to provide site access to Mr Jackson personally in his role as Contract Administrator at times which fall outside normal working hours and in the absence of a representative from MWA”.
Prior to around May 2023, MWA had afforded essentially unrestricted access to the Contract Administrator, but upon the Directors of MWA becoming aware of this access and obtaining legal advice, they notified Mr Jackson that access would be provided to him only during normal working hours, when an MWA representative was present, or could accommodate out of hours access provided an MWA representative could be present.
The Contract Administrator contended that this was a breach of several contractual clauses, including clause 3.1, and would impede his role as Contract Administrator.
In considering the application by Mr Jackson, the Court applied the American Cyanamid principles, laid down in American Cynamid v Ethicon Limited [1975] AC 396. These principles require the following to be considered in turn before injunctive relief will be granted:
In applying these principles, the court considered that there was not a serious issue to be tried, as there was no contractual provision allowing the Contract Administrator to access the site at whatever time he wished. The judge did not consider that Mr Jackson’s previous access outside of working hours meant that restricting his access further down the line would constitute a breach of contract. Furthermore, the judge ruled that no evidence had been supplied demonstrating that keeping the Contract Administrator’s access to working hours would hinder his ability to carry out his role.
On the second limb of the American Cynamid principles, the judge considered that damages would be an adequate remedy, as no potential loss other than financial could be identified. Further to this, the judge considered that the balance of convenience would be in favour of rejecting the application for an injunction, as there was no real urgency or necessity to preventing MWA from restricting the Contract Administrator’s access to site.
When considering the meaning of the right to access “at all reasonable times”, it should be considered if any restriction to access may hinder the affected party from performing their contractual obligations. If this is not the case, it will likely be reasonable to restrict access to working hours, and when the Contractor with possession is able to provide a representative to be present. As always, this will depend on the contract and circumstances of the project, but this case provides useful guidance in considering when it may or may not be reasonable for access to be given.
Quigg Golden are experts in construction disputes, adjudication, and public procurement in the United Kingdom and Ireland. If you need any assistance in a construction claim, adjudication, or other construction dispute, feel free to contact Quigg Golden directly here.
Published 30 April 2024
Published 20 February 2024
