When seeking an extension of time due to the occurrence of a contractual relief event – whether an employer delay, a variation or a neutral event (such as “force majeure” –  e.g. COVID -19 delays), I am sure that most contractors/subcontractors have been advised by their employer that they need to employ ‘’best endeavors” to overcome or reduce the delay.

This scenario is particularly common under JCT contracts due to the JCT’s employment of the term – for example, clause 2.18.6.2 of JCT’s DBSub/C 2016 confirms that:

“..the Subcontractor shall constantly use his best endeavours to prevent delay in the progress of the Subcontract Works…however caused…”

Whilst the JCT contract does not contain any definition of the term “best endeavours” a court ruling relating to another form of contract containing the same term has resulted in parties asserting that this term alone, if included within a construction contract, requires any party delayed by a relief event to, for example, accelerate its works, or to take other measures that would or could cause it to incur cost and/or additional risk to lessen or remove the impact of the delay event.

The ruling central to this issue is Jet2.com -v- Blackpool Airport Ltd [2012] EWCA Civ 417, with the relevant facts about this case, in the context of its potential application to a construction contract containing the same term (“best endeavours”), including:

• The contract was not a construction contract, and instead related to, amongst other things, landing rights and hours of usage of Blackpool Airport by Jet2, and
• The ruling (which held that Blackpool was potentially required to suffer additional cost in the fulfilment of its “best endeavours” obligation to Jet2) turned on the facts and not simply the inclusion of the term “best endeavours” within the contract.

Additionally, and with specific regard to the implications of this wording within a JCT contract, the following facts are relevant:

• JCT contracts  included “best endeavours” wording long before the Jet2 ruling (for example the 1998 JCT suite of contracts employed the term), and so the Jet2 ruling could not be said to reflect the intent of the JCT, and
• The courts have confirmed (for example, the ruling in Walter Lilly & Company -v- MacKay (2012)) that in relation to delays attributable to relief events (“Relevant Events”), and even in instances of concurrent delay, the contractor is entitled to time.

Given the above, the term “best endeavours”, whether in a JCT contract or any other contract, does not in itself import an obligation for a party suffering delay due to the occurrence of a contractual relief event to take any steps that may cause it to suffer additional cost or risk to lessen or overcome the same.