James - we have spoken about this off line and the issue here is the point that Dave touched on. There is no doubt that not having access is a compensation event. The problem is that this is one that could be time-barred under clause 61.3. For 12 of the 19 standard compensation events it is the Contractors responsibility to notify if access, weather, unforeseen conditions caused them a problem. If it is not notified within eight weeks that it has, then there will be no change to Prices or Completion/Key Date at later stage. The intent of the clause is to stop Contractors at the end of the project coming up with numerous delay entitlements which come out of the woodwork and the Client had all but set their budget for the project.
This situation is a bit different as your Employer MUST have know the lack of access would be a problem - but it doesn't take away the fact that it was you who was obliged to notify it. I know neither party on that project were particularly following the contract. As Andrew mentioned, if they gave you an instruction to not start work under 60.1(4) then this is not one you are time-barred on as they should have notified this one. This hopefully therefore would be the angle to come from (assuming you had that as an instruction or at least in writing somehow).
The other thing that should have been happening was the regular issue of programme, which would then have shown (progressively) planned Completion moving out beyond Completion Date due to the lack of access. You have told me these programmes were not issued at the time.
They haven't followed the contract either - and I think you just need to get round the table with your (retrospective) progressive programmes showing the effect this clearly had on planned Completion, and also show any communication you were raising at the time that stated that this was a problem.
Easy to say with hindsight, but I honestly have no idea why a Contractor will not make sure they understand the rules of the contract (which are pretty sensible and proactive) and follow them to create transparency between the Parties and also protect the Contractor financially. It has but you in a weaker position than you clearly deserve to be.
Making sure you are notifying a compensation event for a reason you are not time-barred on i.e.60.1(1,4,7,8,10,15 or 17) is your key defense here (other than relying on a spirit of mutual trust)
Good luck!
This situation is a bit different as your Employer MUST have know the lack of access would be a problem - but it doesn't take away the fact that it was you who was obliged to notify it. I know neither party on that project were particularly following the contract. As Andrew mentioned, if they gave you an instruction to not start work under 60.1(4) then this is not one you are time-barred on as they should have notified this one. This hopefully therefore would be the angle to come from (assuming you had that as an instruction or at least in writing somehow).
The other thing that should have been happening was the regular issue of programme, which would then have shown (progressively) planned Completion moving out beyond Completion Date due to the lack of access. You have told me these programmes were not issued at the time.
They haven't followed the contract either - and I think you just need to get round the table with your (retrospective) progressive programmes showing the effect this clearly had on planned Completion, and also show any communication you were raising at the time that stated that this was a problem.
Easy to say with hindsight, but I honestly have no idea why a Contractor will not make sure they understand the rules of the contract (which are pretty sensible and proactive) and follow them to create transparency between the Parties and also protect the Contractor financially. It has but you in a weaker position than you clearly deserve to be.
Making sure you are notifying a compensation event for a reason you are not time-barred on i.e.60.1(1,4,7,8,10,15 or 17) is your key defense here (other than relying on a spirit of mutual trust)
Good luck!