Loss and expense under UK contracts

The structure

Contract text Under the JCT forms, time is earned through the Relevant Events and money through the Relevant Matters. They are different lists, and an event can appear on one and not the other. That single fact resolves most confusion about why an extension of time did not produce a payment.

The process

1. The contractor notifies that regular progress is being or is likely to be affected, as soon as the effect becomes apparent.
2. The contractor provides the information and particulars the contract requires, and updates them.
3. The contract administrator ascertains the amount, on the material provided.
4. The amount is added to the contract sum through the payment mechanism.

The 2016 and later editions tightened the notification and particulars requirements. Which edition applies, and how it has been amended, changes the process materially, so read the executed contract rather than a general description of the form.

Ascertainment is not estimation

Ascertainment means establishing the actual loss and expense from the records. A calculation built on rates, formulas or global figures is not ascertainment, and a contract administrator asked to ascertain from that material is entitled to say the information is insufficient.

Technical guidance The RICS guidance on ascertaining loss and expense published in 2015 is archived. Archived guidance can be useful historical context and must never be presented as current mandatory practice.

What it does not cover

Loss and expense is a contractual remedy operating within the contract. Claims for breach, and heads such as financing charges or loss of profit, may run on a different basis with different requirements, and mixing the two in a single schedule of loss makes both harder to follow.