Every authority and quotation the guide relies on, with the full citation, the passages quoted and a link to the source.
Judgments
Adyard Abu Dhabi v SD Marine Services
[2011] EWHC 848 (Comm) · Commercial Court · Hamblen J · 11 April 2011 ·Find Case Law
“The act relied on must actually prevent the contractor from carrying out the works within the contract period or, in other words, must cause some actual delay.”
“The contractor contended that he was entitled to an extension of time for completion by the period required to carry out the variations starting from the date of the relevant instructions ("the gross basis").”
“The rationale of the principle is that it is unfair for a party to insist on performance of an obligation which he has prevented the other party from performing. That necessarily means prevention in fact; not prevention on some notional or hypothetical basis.”
“the English law authorities in relation to extensions of time under the JCT form and similar contracts are clear that it must be established that the relevant event is at least a concurrent cause of actual delay to the progress of the works.”
“He cannot refuse to do so on the grounds that the delay would have occurred in any event by reason of the shortage of labour.”
“This makes it clear that there is only concurrency if both events in fact cause delay to the progress of the works and the delaying effect of the two events is felt at the same time.”
“the Court of Appeal refused permission to appeal from this judgment, describing it as "exemplary"”
“A trivial variation may lead to the loss of the right to liquidated damages for a long period of culpable delay and, in this case, loss of the right to rescind as well.”
[2024] EWCA Civ 1500 · Court of Appeal (Civil Division) · Bean, Males and Stuart-Smith LJJ (Stuart-Smith LJ giving the lead judgment; Males LJ [90]-[100]; Bean LJ [101]-[102]) · 6 December 2024 ·Find Case Law
“It enables a claimant to recover when loss is caused by multiple events, for all of which the defendant is responsible, but it is impossible or impracticable to identify separately the loss caused by each of those events.”
“Thus the global claim concept, as applied in the building cases, gives a claimant an additional weapon in its armoury, but it is not one which a claimant is obliged to deploy.”
“The downside, from a claimant's point of view, is that the global claim will generally fail if any material contribution to the loss is made by an event for which the defendant is not responsible.”
Amec Civil Engineering Ltd v Secretary of State for Transport
[2005] EWCA Civ 291 · EWCA · May LJ (Hooper LJ agreeing); Rix LJ concurring in the result, dissenting on issue two · 17 March 2005 ·Find Case Law
“but not of an Engineer giving a decision under clause 66 of the ICE conditions.”
“I would not be coy about saying that the Engineer has to act "fairly", so long as what is regarded as fair is flexible and tempered to the particular facts and occasion.”
[2016] EWHC 2856 (TCC) · TCC · HHJ Stephen Davies · 11 November 2016 ·Find Case Law
“I would not have been prepared to accept the tender planned outputs as a realistic starting point for the comparison.”
“He made the point, which seems to me to be commercially astute, that on the figures this represented a 50% loss of productivity over the whole of the contract and the whole of the county which, if it had happened in circumstances where Amey genuinely believed it was due to Cumbria's breach of contract, something would surely have been said or done at the time.”
Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd
(1999) 66 Con LR 119 · TCC · HHJ Hicks QC · 19 October 1999
“In my judgment that argument is misconceived.”
“The allocation should not be in the gift of the main contractor.”
“At least two further questions are relevant to any such issue. The first, implicit in the description itself, is "earlier than what?" The second asks by whose decision the relevant steps were taken.”
“It is difficult to see how there can be any room for the doctrine of mitigation in relation to damage suffered by reason of the employer's culpable delay in the face of express contractual machinery for dealing with the situation by extension of time and reimbursement of loss and expense.”
Balfour Beatty Construction Ltd v London Borough of Lambeth
[2002] EWHC 597 (TCC); [2002] BLR 288; (2002) 84 Con LR 1 · TCC · HHJ Humphrey Lloyd QC · 12 April 2002 ·Source
“he may not of his own volition use them to make good fundamental deficiencies in the material presented by one party”
“If an adjudicator intends to use a method which was not agreed and has not been put forward as appropriate by either party he ought to inform the parties and to obtain their views”
Beaufort Developments (NI) Ltd v Gilbert-Ash NI Ltd
[1999] 1 AC 266 (HL) · UKHL · Lord Hoffmann · 20 May 1998
“It is important to have machinery by which the rights and duties of the parties at any given moment can be at least provisionally determined with some precision.”
“Furthermore, the architect is the agent of the employer. He is a professional man but can hardly be called independent.”
“So there is no need for the contract to confer on the courts the power to open up and revise interim certificates. The power already exists, as part of the court's ordinary power to enforce the contract in accordance with its terms.”
“It may have been given when the knowledge of the architect about the state of the work or the effect of external causes was incomplete”
“require very clear words before construing a contract as giving an architect such powers.”
Bresco Electrical Services Ltd (in liquidation) v Michael J Lonsdale (Electrical) Ltd; Cannon Corporate Ltd v Primus Build Ltd
[2019] EWCA Civ 27 · Court of Appeal (Civil Division) · Coulson LJ (King LJ and Sir Andrew McFarlane P agreeing) · 24 January 2019 ·Find Case Law
“the purpose of the 1996 Act would be substantially defeated if a responding party could, as a matter of course, reserve its position on jurisdiction in general terms at the start of an adjudication”
Buckingham Group Contracting Ltd v Peel L&P Investments and Property Ltd
[2022] EWHC 1842 (TCC) · TCC · Mr Alexander Nissen QC (sitting as a Deputy High Court Judge) · 15 July 2022 ·Find Case Law
“none of the declarations sought by Buckingham were dependent on an argument that the provisions in respect of liquidated damages were a penalty”
“Buckingham contends that the provisions in respect of liquidated damages are void and unenforceable and that any remedy in respect of general damages is capped”
Carillion Construction Ltd v Devonport Royal Dockyard Ltd
[2005] EWCA Civ 1358; [2006] BLR 15 · EWCA · The Master of the Rolls, Chadwick LJ and Moore-Bick LJ (judgment of the Court given by Chadwick LJ) · 16 November 2005 ·Find Case Law
“The need to have the "right" answer has been subordinated to the need to have an answer quickly.”
Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis
[2015] UKSC 67; [2016] AC 1172 · UKSC · Lord Neuberger P, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge · 4 November 2015 ·Find Case Law
“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”
“The real question when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a pre-estimate of loss. These are not natural opposites or mutually exclusive categories. A damages clause may be neither or both.”
“Where the test is to be applied to a clause fixing the level of damages to be paid on breach, an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach would amount to a penalty and thus be unenforceable.”
“In a negotiated contract between properly advised parties of comparable bargaining power, the strong initial presumption must be that the parties themselves are the best judges of what is legitimate in a provision dealing with the consequences of breach.”
[2010] CSIH 68 · Court of Session, Inner House (Extra Division) · Lord Osborne, Lord Kingarth, Lord Carloway (Lord Carloway dissenting on apportionment) · 22 July 2010 ·Source
“The words "fair and reasonable" in the clause are not related to the determination of whether a Relevant Event has caused the delay in the Completion Date, but to the exercise of fixing a new date once causation is already determined.”
“while a critical path analysis, if shown to be soundly based, may be of assistance, the absence of such an analysis does not mean that a claim for extension of time must necessarily fail.”
“It might also be possible to describe events as concurrent in the broad sense that they both possessed a causative influence upon some subsequent event, such as the completion of works, even though they did not overlap in time.”
“the view of HHJ Seymour QC in Royal Brompton Hospital NHS Trust v Hammond & Others (No 7) [2001] 76 Con LR 148 (at para 31), that a Relevant Event falls to be disregarded if a pre-existing contractor default would nonetheless have caused the delay, appears to be in error.”
“it will be open to the decision-maker, whether the architect, or other tribunal, approaching the issue in a fair and reasonable way, to apportion the delay in the completion of the works occasioned thereby as between the relevant event and the other event.”
“For that reason, discussion of whether or not there is true concurrency, in my opinion, does not assist in the essential process to be followed under clause 25.”
[2007] CSOH 190 · Court of Session, Outer House · Lord Drummond Young · 30 November 2007 ·Source
“I am of opinion that Mr Whitaker must be correct when he states that an error in one logic link can vitiate the whole programme, and errors in a number of links will almost inevitably vitiate the programme.”
London Underground Ltd v Citylink Telecommunications Ltd
[2007] EWHC 1749 (TCC) · TCC · Ramsey J · 20 July 2007 ·Find Case Law
“The consequence of the undermining of a global claim in one of a number of ways, including those suggested by the Lord Ordinary at first instance in Laing v. Doyle at paragraphs 36 and 37, is that the claim will fail as a global claim.”
“It will generally be the duty of a tribunal to determine an arbitration on the basis of the cases which have been advanced by each party, and of which each has notice. To decide a case on the basis of a point which was not raised as an issue or argued, without giving the parties the opportunity to deal with it, will be a procedural irregularity.”
Cleveland Bridge UK Ltd v Severfield-Rowen Structures Ltd
[2012] EWHC 3652 (TCC) · TCC · Akenhead J · 21 December 2012 ·Find Case Law
“This meant that SRS could only fix steel members into position often only pinning them together with one bolt as a temporary measure until the connections were finally and fully fixed by the wrapping up team the following day.”
“Therefore a concerted effort to work additional hours to try to recover the delay was at every level reasonable.”
“The fact that the acceleration was not ultimately successful due to factors which SRS can not establish are attributable to those failures can not and should not prevent or limit recovery of such costs.”
“the fact that there is a nagging feeling that some part of these extra measures might well have been attributable to the CBUK breaches is not enough to justify an allowance of damages.”
“It would be wrong just simply to take the total costs and artificially reduce them by some percentage because that would be simply arbitrary.”
“Mr Gurnham frankly accepts that he is unable to say one way or another whether these sub-contract resources were anything to do with acceleration.”
“he had not been able to use the "measured mile" or "earned value" approaches, these being commonly used to assess disruption loss.”
“There must have been disruption in the sense of reduced productivity.”
“Deliveries by CBUK were late and in some respects out of sequence. This led to delays and piecemeal deliveries to site.”
“it can not "say which individual events caused which individual periods of disruption"”
“it was at least logically possible that the reason for the increased number of shifts was inadequate planning, inefficient use of cranes or even that Steelcraft was not very good at its job.”
“What the Court can and should do in circumstances where it is satisfied on a balance of probabilities that some (more than de minimis) disruption must have occurred as a result of CBUK's breaches is to make a reasoned assessment albeit based on the minimum probably so attributable.”
“it is inconceivable that there would not have been more complaint from Mace which was closely supervising the work if SRS steel erectors were "dragging their feet" unduly.”
“The fact that the Court has a nagging feeling that this part of the claim could have been capable of proof and that it would not be surprising if some part of the £60,000 settlement, albeit a relatively small part, related to such breaches is not enough to make an award of damages for it.”
“This pleading was amended, belatedly, on 1 November 2012 to increase the disruption claims to £225,055.43”
[2005] EWHC 1018 (TCC) · TCC · Jackson J · 20 May 2005 ·Find Case Law
“It is, at the very least, properly arguable that when assessing sums payable to CORBER, RLE's duty is to act impartially as between employer and contractor.”
[2009] EWHC 3140 (TCC) · High Court (Technology and Construction Court) · Richard Fernyhough QC (sitting as a Deputy High Court Judge) · 24 September 2009 ·Find Case Law
“In the absence of hard facts and figures to support such a claim related to the facts of this case, which do not exist, in my judgment, this claim has not been established on the balance of probabilities.”
“But the contractor will not recover the general site overheads of carrying out all the activities on site as a matter of course unless he can establish that the delaying event to one activity in fact impacted on all the other site activities.”
De Beers UK Ltd (formerly The Diamond Trading Company Ltd) v Atos Origin IT Services UK Ltd
[2010] EWHC 3276 (TCC) · TCC · Edwards-Stuart J · 16 December 2010 ·Find Case Law
“By contrast, the contractor cannot recover damages for delay in circumstances where he would have suffered exactly the same loss as a result of causes within his control or for which he is contractually responsible.”
“The general rule in construction and engineering cases is that where there is concurrent delay to completion caused by matters for which both employer and contractor are responsible, the contractor is entitled to an extension of time but he cannot recover in respect of the loss caused by the delay.”
Diamond Glass Enterprise Pte Ltd v Zhong Kai Construction Co Pte Ltd
[2022] SGHC(A) 44 · Appellate Division of the High Court of Singapore · Woo Bih Li JAD, Quentin Loh JAD, Hoo Sheau Peng J (Quentin Loh JAD delivering the judgment of the court) · 23 December 2022 ·Source
“To this extent, we approve of Multiplex and reject the approach in Gaymark.”
[1897] 1 QB 566 (CA) · Court of Appeal · Lord Esher MR · 1 January 1897
“if the building owner has ordered extra work beyond that specified by the original contract which has necessarily increased the time requisite for finishing the work, he is thereby disentitled to claim the penalties for non-completion provided by the contract.”
[2011] EWHC 930 (TCC) · TCC · Mr Recorder Soole QC · 14 April 2011 ·Find Case Law
“DPIL can have no claim for damages resulting from the delay in completion namely the 7 months alleged loss of rental income and alleged wasted expenditure.”
Eco World - Ballymore Embassy Gardens Co Ltd v Dobler UK Ltd
[2021] EWHC 2207 (TCC) · High Court (Technology and Construction Court) · O'Farrell J
“clause 2.32.1 and the Trade Contract Particulars would operate as a limitation of liability provision, even if the liquidated damages were void or a penalty.”
Fluor Ltd v Shanghai Zhenhua Heavy Industry Co Ltd
[2018] EWHC 1 (TCC) · TCC · Sir Antony Edwards-Stuart (sitting as a High Court Judge) · 11 January 2018 ·Find Case Law
“In that situation, Fluor would have incurred a liability for 15 days liquidated damages, for which ZPMC would have been responsible: subsequent events could not eliminate it.”
“The former is the correct approach when considering matters such as the award of an extension of time, but that is not the exercise with which the court is concerned in this case. I agree that some form of retrospective analysis is required.”
“the insuperable difficulty in the way of Fluor's claim for liquidated damages is the fact that I have already held that the installation of the Phase 1 MPs was in float by December 2009, because by then the critical path lay through the fit out and/or installation of the TPs”
Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd
[2017] EWHC 1763 (TCC) · TCC · Fraser J · 12 July 2017 ·Find Case Law
“In my judgment, exactly the same analysis applies to the contract here between ICI and MMT and Jackson LJ's reasons apply to this contract too, and indeed to most if not all of the standard contract forms in this field.”
“This goes for upwards and downwards revisions.”
“He was the very opposite of independent on the facts of this case.”
“It means that there was no Project Manager.”
“dispute resolution is for when disputes have arisen, and not an answer to the central operation of the contract terms.”
ICOP Construction (SG) Pte Ltd v Tiong Seng Civil Engineering (Pte) Ltd
[2024] SGHC(A) 1 · Appellate Division of the High Court of Singapore · Woo Bih Li JAD, Kannan Ramesh JAD, Quentin Loh SJ (Quentin Loh SJ delivering the judgment of the court) · 2 January 2024 ·Source
“it is meaningless to speak of concurrent causes to a delay when the delay in question is not on the critical path”
“we are of the view that this debate is irrelevant in the present case”
Jerram Falkus Construction Ltd v Fenice Investments Inc (No 4)
[2011] EWHC 1935 (TCC) · TCC · Coulson J · 21 July 2011 ·Find Case Law
“if that earlier completion date would not have been achieved anyway, because of concurrent delays caused by the contractor's own default, the prevention principle will not apply.”
John Barker Construction Ltd v London Portman Hotel Ltd
(1996) 83 BLR 31 · Official Referees' Business · Mr Recorder Toulson QC · 1 January 1996
“I accept that the assessment of a fair and reasonable extension involves an exercise of judgment, but that judgment must be fairly and rationally based.”
John Doyle Construction Ltd v Laing Management (Scotland) Ltd
2004 SC 713 · Court of Session, Inner House (Extra Division); opinion of the court by Lord Drummond Young · 11 June 2004 ·Source
“It may be said that such an approach produces a somewhat rough and ready result. This procedure does not, however, seem to us to be fundamentally different in nature from that used in relation to contributory negligence or contribution among joint wrongdoers.”
“That is in essence the nature of a global claim.”
“This terminology has the advantage of emphasising that the technique involved in calculating a global claim need not be applied to the whole of the contractor's claim.”
“In each case, of course, if the claim is to fail, the matter for which the employer is not responsible in law must play a significant part in the causation of the loss and expense.”
“Unless there are special reasons to the contrary, responsibility during that period should probably be divided on an equal basis, at least where the concurrent cause is not the contractor's responsibility. Where it is his responsibility, however, it may be appropriate to deny him any recovery for the period of delay during which he is in default.”
John Doyle Construction Ltd v Laing Management (Scotland) Ltd (Outer House, Lord Macfadyen)
[2002] BLR 393 · Court of Session, Outer House · Lord Macfadyen
“The logic of a global claim demands, however, that all the events which contribute to causing the global loss be events for which the defender is liable.”
“The global claim may fail, but there may be in the evidence a sufficient basis to find causal connections between individual losses and individual events, or to make a rational apportionment of part of the global loss to the causative events for which the defender has been held responsible.”
[2013] EWCA Civ 37 · Court of Appeal (Civil Division) · Sir David Keene (Laws and Tomlinson LJJ agreeing) · 5 February 2013 ·Find Case Law
“So the fact that a loss is suffered because of a change in market values during the period of wrongful delay does not of itself in any way render the case out of the ordinary.”
[2011] UKSC 13; [2011] 2 AC 398 · UK Supreme Court · Lord Phillips (majority with Lord Brown, Lord Collins, Lord Kerr and Lord Dyson; Lord Hope and Lady Hale dissenting) · 30 March 2011 ·Find Case Law
“There is no conflict between the duty owed by an expert to his client and his overriding duty to the court.”
[2011] EWHC 3449 (TCC) · TCC · Coulson J · 21 December 2011 ·Find Case Law
“in the absence of any indication to the contrary, a contractor is entitled to plan and perform the work as he pleases, provided always that he finishes it by the time fixed in the contract.”
“in the absence of any agreed and binding programme, the critical path might lie anywhere”
London Fire and Emergency Planning Authority v Halcrow Gilbert Associates Ltd
[2007] EWHC 2546 (TCC) · TCC · HHJ Toulmin CMG QC · 31 July 2007 ·Find Case Law
“It will only be in the most extreme case that an expert's evidence will be rejected out of hand and not even considered. In other cases his failure to follow the clear guidance which I have just set out will form the background against which his evidence must be considered.”
Lumley Baxter Asset Management LLP v Aviva Life and Pensions UK Ltd
[2026] EWCC 45 · County Court at Huddersfield · HHJ Pema · 14 July 2026 ·Find Case Law
“The fact that breaches caused disruption is not the same as proving that the disruption caused recoverable financial loss.”
“The broad axe assists the court in quantifying a proved loss; it does not relieve the Claimant of proving that a legally recoverable loss was suffered.”
“A charge-out rate is not equivalent to, or a proper proxy for, the cost to the company of employing staff.”
Mace Construct Ltd v Baltic Investment Holdings Ltd
[2026] EWHC 976 (TCC) · TCC · Adrian Williamson KC (sitting as a Deputy Judge of the High Court) · 28 April 2026 ·Find Case Law
“completion of the Works or of any Section is likely to be delayed thereby beyond the relevant Completion Date”
“the Contractor shall not have nor make any claim for an extension of time under clause 2.25”
“the Employer's Agent granted extensions of time totalling 7 weeks and 5 days”
“makes the bold further submission that an extension of time granted under clause 2.25.1, however incorrect, cannot be reviewed by the adjudicator or the court.”
“the Employer is eternally saddled with an erroneous extension of time”
“The Adjudicator can open up, revise and review the extension of time granted under clause 2.25.1, but, in so doing, he is to carry out the task which that clause requires, i.e. a prospective assessment in response to the notice and particulars submitted under clause 2.24.”
“travel back to the time at which the notice and particulars were submitted under clause 2.24. This requires him to ignore what has happened since that date.”
“This declaration raises different and somewhat novel issues.”
“Employer is then fixed with this extension of time, even during the clause 2.25.5 process at the end of the contract, unless there have been Relevant Omissions.”
“Where an extension of time granted during the course of the works underestimates delay, this can be corrected on the review at completion, but overestimates cannot be corrected since the review process prohibits an earlier date being fixed.”
“it would be artificial to ignore entirely what in fact happened”
Macob Civil Engineering Ltd v Morrison Construction Ltd
[1999] BLR 93; (1999) 64 Con LR 1 · High Court · Dyson J · 1 January 1999
“But Parliament has not abolished arbitration and litigation of construction disputes. It has merely introduced an intervening provisional stage in the dispute resolution process. Crucially, it has made it clear that decisions of adjudicators are binding and are to be complied with until the dispute is finally resolved.”
Maeda Kensetsu Kogyo Kabushiki Kaisha (also known as Maeda Corporation) and another v Bauer Hong Kong Ltd
[2020] HKCA 830 · Court of Appeal, Hong Kong · Kwan VP (Yuen JA and Barma JA agreeing) · 16 October 2020 ·Source
“The reference to "the contractual basis" would not preclude identifying more than one basis in the alternative or stating more than one basis in the notice or serving more than one notice each stating a contractual basis.”
[2017] EWHC 87 (TCC) · High Court (Technology and Construction Court) · Coulson J · 26 January 2017 ·Find Case Law
“Precisely the same claim for loss and expense due to delay and disruption under the express terms of the main contract (or, as here, under the sub-contract) will be routinely put in the alternative as a claim for damages for breach of contract.”
“It is the financial loss which flows directly from delay and disruption caused to a main contractor (or a sub-contractor), and is recoverable under the first limb of Hadley v Baxendale.”
[2019] EWCA Civ 502 · Court of Appeal (Civil Division) · Coulson LJ (Newey LJ and Lewison LJ agreeing) · 29 March 2019 ·Find Case Law
“that can be summarised as a state of affairs in which the works have been completed free from patent defects, other than ones to be ignored as trifling.”
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2)
[2007] EWHC 447 (TCC) · TCC · Jackson J · 6 March 2007 ·Find Case Law
“The essence of the prevention principle is that the promisee cannot insist upon the performance of an obligation which he has prevented the promisor from performing.”
“Instead, time becomes at large and the obligation to complete by the specified date is replaced by an implied obligation to complete within a reasonable time.”
“extension of time clauses exist for the protection of both parties to a construction contract or sub-contract.”
“Acts of prevention by an employer do not set time at large, if the contract provides for extension of time in respect of those events.”
“If Gaymark is good law, then a contractor could disregard with impunity any provision making proper notice a condition precedent. At his option the contractor could set time at large.”
“the extension of time machinery set out in clauses 11.1, 11.2 and 11.3 remains fully operational. Honeywell is entitled to receive an appropriate extension of time through the operation of those provisions.”
“The same principle applies as between main contractor and sub-contractor.”
“Contractual terms requiring a contractor to give prompt notice of delay serve a valuable purpose; such notice enables matters to be investigated while they are still current. Furthermore, such notice sometimes gives the employer the opportunity to withdraw instructions when the financial consequences become apparent.”
“It is in order to avoid the operation of the prevention principle that many construction contracts and sub-contracts include provisions for extension of time.”
“Whatever may be the law of the Northern Territory of Australia, I have considerable doubt that Gaymark represents the law of England.”
Multiplex Constructions (UK) Ltd v West India Quay Development Company (Eastern) Ltd
[2006] EWHC 1569 (TCC) · TCC · Ramsey J · 8 June 2006 ·Find Case Law
“This method of analysis shows the impact against the "as-planned" programme and therefore may well show a greater extension than is required, if actual progress and reprogramming is taken into account. This is one of the major concerns with the method.”
Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd
[2017] NIQB 43 · High Court of Justice in Northern Ireland, Queen's Bench Division (Commercial) · Deeny J · 27 April 2017 ·Source
“Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he shut his eyes and grope in the dark?”
Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd
[2014] NICA 27 · Court of Appeal in Northern Ireland · Girvan LJ (delivering the judgment of the court; Morgan LCJ, Girvan LJ, Coghlin LJ) · 13 February 2014 ·Source
[2018] EWCA Civ 1744 · EWCA · Coulson LJ (Sir Terence Etherton MR and Sir Ernest Ryder SPT agreeing) · 30 July 2018 ·Find Case Law
“Such clauses were not, as is sometimes thought, designed to provide the contractor with excuses for delay, but rather to protect employers, by retaining their right both to a fixed (albeit extended) completion date and to deduct liquidated damages for any delay beyond that extended completion date.”
“it took just 6 weeks to complete. However, the overall delay to the works was 58 weeks”
“the prevention principle can only sensibly operate by way of implied terms.”
“The problem was that many extension of time clauses tended to be narrowly drawn. Although that was again seen as a benefit to the employer, in fact it was not.”
“any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account”
“The final reason for my rejection of Ground 1 is perhaps the most important of all and applies even if I was wrong, and clause 2.25.1.3(b) was somehow connected with the prevention principle.”
“on the happening of a particular type of prevention”
“time was not set at large because the contract provided for an extension of time on the occurrence of those events”
“a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency”
“the primary purpose of an extension of time provision is to give the contractor relief against the levying of liquidated damages for delays which were not his responsibility under the contract”
“a contractor's entitlement to an extension of time in circumstances of concurrent delay is not entirely free from doubt.”
“That was an allocation of risk which the parties were entitled to agree”
“There is no suggestion in the authorities noted above that the parties cannot contract out of some or all of the effects of the prevention principle: indeed, the contrary is plain.”
“then it would expressly permit the employer to levy liquidated damages for periods of concurrent delay, because it would not grant the appellant relief against such liability by extending the completion date.”
Obrascon Huarte Lain SA v HM Attorney General for Gibraltar
[2014] EWHC 1028 (TCC) · TCC · Akenhead J · 16 April 2014 ·Find Case Law
“Accordingly, I find that OHL was delayed by 6 days in this period for a reason which entitles it to extension (exceptionally adverse climatic conditions)”
“which is clearly nowhere near a notice under Clause 20.1”
“OHL was at termination only entitled to one days extension of time because the 6 days caused by the impact of the rainfall in December on progress at that time was not the subject matter of any timely notice under Clause 20.1.”
“I see no reason why this clause should be construed strictly against the Contractor and can see reason why it should be construed reasonably broadly, given its serious effect on what could otherwise be good claims for instance for breach of contract by the Employer.”
“It must be recognisable as a "claim".”
“This suggests that the extension of time can be claimed either when it is clear that there will be delay (a prospective delay) or when the delay has been at least started to be incurred (a retrospective delay).”
“Notice does not have to be given for the purposes of Clause 20.1 until there actually is delay (November) although the Contractor can give notice with impunity when it reasonably believes that it will be delayed (say, October).”
“The onus of proof is on OHL to prove that it was delayed by the matters now relied upon by it as critically causing it delay up until the time of termination.”
“I cannot see how, in the ordinary course, the employer can insist on compliance with a condition if it is partly his own fault that it cannot be fulfilled”
“No doubt if the extension of time clause provided for a postponement of the completion date on account of delay caused by some breach or fault on the part of the employer, the position would be different.”
“I consider that unless the contract expresses a contrary intention, the employer, in the circumstances postulated, is left to his ordinary remedy; that is to say, to recover such damages as he can prove flow from the contractor's breach.”
Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust
[2026] EWHC 1404 (TCC) · TCC · Adrian Williamson KC (deputy High Court judge) · 10 June 2026 ·Find Case Law
“the Adjudicator went off on a "frolic" by, in effect, inventing a case for PML which he considered to be superior to that which they actually advanced.”
“This startling conclusion was clearly material to the Decision, and it should have been put to the parties for comment.”
[1985] 1 WLR 948 (HL) · House of Lords · Lord Brandon (Lord Fraser, Lord Diplock, Lord Roskill and Lord Templeman agreeing) · 1 January 1985
“the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.”
Royal Brompton Hospital NHS Trust v Hammond (No 7)
[2000] EWHC Technology 39 · TCC · HHJ Richard Seymour QC · 18 December 2000 ·Source
“The Relevant Event simply has no effect upon the completion date.”
“It does not mean, in my judgment, a situation in which, work already being delayed, let it be supposed, because the contractor has had difficulty in obtaining sufficient labour, an event occurs which is a Relevant Event and which, had the contractor not been delayed, would have caused him to be delayed, but which in fact, by reason of the existing delay, made no difference.”
“This may seem hard to a contractor but the objects of an extension of time clause are to avoid the contractor being liable for liquidated damages where there has been delay for which it is not responsible, and still to establish a new completion date to which the contractor should work so that both the employer and the contractor know where they stand.”
“Under the JCT conditions, as used here, there can be no doubt that if an architect is required to form an opinion then, if there is then unused float for the benefit of the contractor (and not for another reason such as to deal with p.c. or provisional sums or items), then the architect is bound to take it into account since an extension is only to be granted if completion would otherwise be delayed beyond the then current completion date.”
[2025] QSC 184 · Supreme Court of Queensland (Trial Division) · Freeburn J · 8 August 2025 ·Source
“Its treatment of the As-Planned v As-Built windows analysis does not require the identification of near critical paths, or their alternative impacts on delay.”
Scheldebouw BV v St James Homes (Grosvenor Dock) Ltd
[2006] EWHC 89 (TCC) · TCC · Jackson J · 16 January 2006 ·Find Case Law
“The duty of the construction manager is not simply to implement the instructions of his principal, but rather to hold the balance fairly as between employer and contractor.”
“He has to reach decisions on matters where, at least potentially, the contractor and the employer have opposing interests.”
“the House of Lords held that an architect issuing interim certificates under the then standard form of building contract was not immune from suit in negligence.”
“When performing his decision-making function, the decision-maker is required to act in a manner which has variously been described as independent, impartial, fair and honest. These concepts are overlapping but not synonymous.”
“They connote that the decision-maker must use his professional skills and his best endeavours to reach the right decision, as opposed to a decision which favours the interests of the employer.”
“The fact that the construction manager acts in conjunction with other professionals when performing his decision-making function does not water down his legal duty.”
“It is such an unusual state of affairs for the employer himself to be the certifier and decision-maker that this can only be achieved by an express term.”
Secretariat Consulting Pte Ltd, Secretariat International UK Ltd and Secretariat Advisors LLC v A Company
[2021] EWCA Civ 6 · Court of Appeal (Civil Division) · Coulson LJ; Males LJ giving a separate concurring judgment; Carr LJ agreeing with both · 11 January 2021 ·Find Case Law
“Depending on the terms of the retainer, the relationship between a provider of litigation support services/expert, on the one hand, and his or her client on the other, may have one of the characteristics of a fiduciary relationship, namely a duty of loyalty or, to put it another way, a duty to avoid conflicts of interest.”
[2005] EWCA Civ 1359 · Court of Appeal (Civil Division) · May LJ (Jacob and Lloyd LJJ agreeing) · 18 November 2005 ·Find Case Law
“What is a reasonable time has to be judged as at the time when the question arises in the light of all relevant circumstances.”
“Where time is not of the essence and where the party said to be in breach by delay is nevertheless making an effort to perform the contract, it is intrinsically difficult for the other party to establish a fundamental breach in this sense.”
[2019] EWCA Civ 1413 · Court of Appeal (Civil Division) · Males LJ (Peter Jackson LJ and McCombe LJ agreeing) · 9 August 2019 ·Find Case Law
“Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence.”
Stellite Construction Ltd v Vascroft Contractors Ltd
[2016] EWHC 792 (TCC) · TCC · Carr J · 14 April 2016 ·Find Case Law
“the adjudicator must have strayed significantly outside the ambit of the materials and matters advanced before him without giving the parties an opportunity to comment”
[2007] EWHC 3454 (TCC) · TCC · HHJ Stephen Davies · 15 November 2007 ·Find Case Law
“I can see the force of the submission that in some cases the right to recover damages for breach would provide an adequate remedy for Sigma; equally I can see that there would be many cases where it would be difficult if not impossible for Sigma to identify or prove the necessary elements of such a claim to the requisite standard.”
“then in any such case provided the Sub-Contractor shall have given within a reasonable period written notice to the Contractor of the circumstances giving rise to the delay, the time for completion hereunder shall be extended by such period as may in all the circumstances be justified”
“the requirement for Steria to give notice of the circumstances giving rise to the delay cannot be extended to include a requirement that the notice must make it clear that it is a request for an extension of time under clause 6.1, or to include a requirement that it gives an assessment of the delay.”
“Generally, one can see the commercial absurdity of an argument which would result in the contractor being better off by deliberately failing to comply with the notice condition than by complying with it.”
[2023] EWCA Civ 813 · Court of Appeal (Civil Division) · Coulson LJ (Andrews LJ and Elisabeth Laing LJ agreeing) · 12 July 2023 ·Find Case Law
“Where parties engage in serial adjudication, particularly if the underlying issues are concerned with delay, there is a greatly increased risk of arguments about which side of the line any subsequent dispute might fall.”
[1974] AC 727 (HL) · UKHL · Lord Reid · 1 January 1974
“it must therefore be implicit in the owner's contract with the architect that he shall not only exercise due care and skill but also reach such decisions fairly, holding the balance between his client and the contractor.”
Tata Consultancy Services Ltd v Disclosure and Barring Service
[2024] EWHC 1185 (TCC) · TCC · Constable J · 17 May 2024 ·Find Case Law
“TCS has simply not discharged the burden upon them to demonstrate the date by which it would have Achieved the Milestone”
“it is clear that neither expert's analysis identified the true critical path”
“It is a creature of contract.”
“the purpose of a notice regime is to give an employer the opportunity to engage in the mitigation of delay, particularly delay which it knows it is going to be claimed has been caused by a matter for which the employer is to blame.”
“the condition precedent regime applies only to DBS's liability to compensate TCS for Delays, as defined.”
“a construction which requires a contractor to notify the employer only for the purposes of a contractual right to compensation, but allows the same claim on the same facts to be advanced at common law without having given notice is uncommercial.”
“I find that DBS and TCS shared precisely the same assumption: both parties were working on the basis that the 5 day condition precedent had fallen away.”
“Clause 7 requires a backward-looking analysis which identifies the actual reasons TCS failed to Achieve the Milestone in question.”
“TCS has simply not discharged the burden upon them to demonstrate the date by which it would have Achieved the Milestone”
“in a case in which the contractor's entitlement did not depend upon it establishing the date by which it would have Achieved a Milestone, the Court might have been tempted on the evidence available to carry out the type of adjustments suggested by Mr Lavy in order to arrive at a middle ground answer to the extent and cause of critical delay.”
“No factual witness and no contemporaneous document identified the existence of a very significant accrued critical delay on the project by the middle of 2016, and that his analysis produced such an apparent delay reflects its unreliability.”
“It is clear that Mr Britton's first, prospective, analysis does not adopt a recognisable and logical method by which this could be established with any reliability.”
“In essence, the conduct described is a type of 'pacing', in which the duration of the non-critical activity is prolonged deliberately in the face of delays caused to a critical activity.”
“where a Delay is attributable in part to the CONTRACTOR's Default and in part to an AUTHORITY Cause the parties shall negotiate in good faith with a view to agreeing a fair and reasonable apportionment of responsibility for the Delay.”
“TCS's potential entitlement to claim both loss and expense pursuant to Clause 7.4 and general damages at common law for `Delays' (as defined) are subject to compliance with the regime at Clauses 5.1 to 5.3.”
“it does not give rise to a reliable basis upon which the Court could effectively carry out its own as-planned v as-built exercise”
“The difficulty of this approach as a matter of objective delay analysis is that its efficacy as an approach itself depends on the very conclusion Mr Britton arrives at”
(1987) 39 BLR 30 (CA) · Court of Appeal · Croom-Johnson LJ and Nourse LJ (as named in the later judgments)
“then that constitutes an exhaustive agreement as to the damages which are or are not to be payable by the contractor in the event of his failure to complete the works on time.”
Thomas Barnes & Sons Plc (in administration) v Blackburn with Darwen Borough Council
[2022] EWHC 2598 (TCC) · TCC (Manchester) · HHJ Stephen Davies sitting as a High Court Judge · 17 October 2022 ·Find Case Law
“The bus station was shortlisted for a design award and an internet search will show why.”
“The claimant is entitled to an additional EOT of 119 days (or 17 weeks), but to prolongation of only 27 days.”
“my previous finding that the claimant was only entitled to an EOT to 10 August 2015 is an important starting point in my consideration of this issue”
“had substantially suspended works, unless or until the defendant conceded to its demands for a substantial EOT significantly beyond its true entitlement and a blank cheque to accelerate the works”
“It follows that the claimant has no prospect of recovering anything in this litigation”
“its interests as designer conflicted with its duties as contract administrator”
“In answer to my question on this point he accepted that it was possible to have more than one critical path”
“Whilst I am prepared to accept this evidence from a theoretical delay analysis viewpoint, comparing the as-planned programme with the position at various points in time, it does not seem to me to be a sufficient answer to the point on causation”
“That, in my view, is not an answer to Mr Gunton's point, which is that it was this float which prevented the delay to the structural steelwork from being critical until 9 December 2014.”
“The claimant cannot simply say that because there was a problem with the hub structural steelwork identified in October 2014, which was not finally resolved until January 2015, all of the delay between those points in time was only caused by this cause.”
“However, I do accept that if an expert selects a method which is manifestly inappropriate for the particular case, or deviates materially from the method which he has said he is following, without providing any, or any proper, explanation, that can be a material consideration in deciding how much weight to place on the opinions expressed by the expert.”
“Again, I accept that there was some force in these complaints.”
“I worked backwards from the completion finishes works, all the way through to saying: what would you need to do to complete those works.”
“his core analysis was deficient in its inadequate treatment of the roof coverings issue.”
“it was inappropriate to use the time slice windows analysis as that was more suitable for a prospective than a retrospective analysis”
“it would be wrong to proceed on the basis that, because the SCL Protocol identifies six commonly used methods of delay analysis, an expert is only allowed to choose one such method and any deviation from that stated approach renders their opinion fundamentally unreliable”
“it would be wrong to attach too much importance to a close analysis of whether each had properly chosen or loyally followed the particular method selected”
“if Mr Hudson had read with the same care the records which Mr Gunton referred to, and which Mr Hudson confirmed he had been provided with, he could not have failed to observe the delay in starting the roof works”
“in closing submissions counsel were agreed that”
“The plain fact is that both of the works items were on the critical path as regards the hub finishes and both were causing delay over the same period.”
“clause 2.29A, introduced by Amendment 1A, does not alter this analysis because the delay to the critical path due to the remedial works to the hub structural steelwork was not a circumstance arising by reason of any error, omission, negligence or default of the claimant or its subcontractors.”
“In short, since the end of February 2015 the works had been plagued by delays which were almost entirely the claimant's own fault and contractual responsibility.”
“depending upon the precise wording of the contract a contractor is only entitled to recover loss and expense where it satisfies the "but for" test.”
“given the passage of time I would need to be very convinced before I felt able to prefer their evidence over the contemporaneous documents on a particular point.”
“the importance of not making findings solely on the contemporaneous documentation without reference to their reliability as records”
“He did not even include the roof coverings as a potentially relevant critical path activity in his windows-based analysis.”
Triple Point Technology, Inc v PTT Public Company Ltd
[2021] UKSC 29 · UKSC · Lord Hodge DP, Lady Arden, Lord Sales, Lord Leggatt, Lord Burrows · 16 July 2021 ·Find Case Law
“Parties agree a liquidated damages clause so as to provide a remedy that is predictable and certain for a particular event”
“The more valuable the right, the clearer the language will need to be.”
“First, establishing what financial loss delay has caused the employer would often be an intractable task capable of giving rise to costly disputes. Fixing in advance the damages payable for such delay avoids such difficulty and cost.”
“Second, such a clause limits the contractor's exposure to liability of an otherwise unknown and open-ended kind, while at the same time giving the employer certainty about the amount that it will be entitled to recover as compensation. Each party is therefore better able to manage the risk of delay in the completion of the project.”
“I conclude that it is ordinarily to be expected that, unless the clause clearly provides otherwise, a liquidated damages clause will apply to any period of delay in completing the work up to, but not beyond, the date of termination of the contract.”
“after the contract has been terminated, the time taken to complete the work is entirely outside the control of the original contractor.”
“If (as the judge held and PTT contends) liquidated damages are payable for the delay up to the date of termination in delivering all the uncompleted work (a total period of 3,220 days), the sum recoverable is US$3,459,278.40.”
Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board
[1973] 1 WLR 601 · House of Lords (approving Lord Denning MR in the Court of Appeal) · Lord Denning MR (CA), approved by Lord Pearson (HL) at 607 E-H · 1 January 1973
“if one party by his conduct - it may be quite legitimate conduct, such as ordering extra work - renders it impossible or impracticable for the other party to do his work within the stipulated time, then the one whose conduct caused the trouble can no longer insist upon strict adherence to the time stated.”
TTSJV W.L.L. & Ors v BapCo Refining B.S.C. (Closed)
[2026] EWHC 2047 (TCC) · TCC · Pepperall J · 4 August 2026 ·Find Case Law
“Clause 8.3(d) made clear that the contractor was not entitled to any extension in the event of there being concurrent delays and at least one of those delays would not give rise to an entitlement to an extension.”
“the strong initial presumption must be against finding the carefully negotiated provisions for liquidated damages in this contract between commercially sophisticated parties to amount to an unenforceable penalty”
“the contractual machinery, which provided for liquidated damages to be reduced pro rata for each dwelling that had been completed, simply did not work.”
Uniform Building Contractors Ltd v The Water and Sewerage Authority of Trinidad and Tobago
[2026] UKPC 2 · UKPC · Sir Peter Coulson (Lord Hamblen, Lord Leggatt, Lady Rose, Lord Richards) · 22 January 2026 ·Find Case Law
“Where a contractor fails to comply with the procedural requirements of a contract, it is not uncommon for them to argue that it would be unfair or inequitable for the employer to have the benefit of additional works without paying for them. Such an argument is usually based on principles of waiver and estoppel.”
“UBC raised waiver and estoppel for the first time in their submissions before the Court of Appeal. That was much too late.”
“Mr Paul had no authority to vary or waive those requirements: if he had said that, for example, UBC did not need to seek a determination under clause 3.5, or were not required to make a claim under clause 20.1, he would have been amending or varying the contract, which he was not permitted to do.”
“although the 2017 version has a slightly more flexible series of provisions than those with which this appeal is concerned, it is still a condition precedent.”
“The eventual termination could not in law resurrect claims that had not been made in time and were therefore no longer open to UBC.”
Van Oord UK Ltd and Sicim Roadbridge Ltd v Allseas UK Ltd
[2015] EWHC 3074 (TCC) · TCC · Coulson J · 12 November 2015 ·Find Case Law
“That the reports and other contemporaneous documents in this case make so few references to standing time or disruption, and the fact that detailed claims were not made in the large amounts now advanced until months, even years, after the period in question, are plainly factors undermining the credibility of OSR's claims in these proceedings.”
“In my view, these contemporaneous documents are a useful starting point when trying to work out what was happening on site at any given time”
“the relevant COR in respect of temporary crossings, was COR 59 and was dated 18 November 2011. This puts the likely value of the claim at £100,000”
“a report that men or machinery were standing idle on a particular day is not a contractual issue, but a matter of fact, a report linked to progress and resource allocation.”
“the truth is that, in the round, they are of much greater assistance to AUK for what they do not say, than they are to OSR for what they do say.”
“That the reports and other contemporaneous documents in this case make so few references to standing time or disruption, and the fact that detailed claims were not made in the large amounts now advanced until months, even years, after the period in question, are plainly factors undermining the credibility of OSR's claims in these proceedings.”
“This is not some technicality on which OSR's claim has foundered; it is further corroborative evidence that the claim which is now made on their behalf is devoid of reality, and fails to engage with what was actually happening on site at the relevant time.”
“That is the complete opposite of what a responsible, independent expert is obliged to do.”
Walter Lilly & Company Ltd v Giles Patrick Cyril Mackay and DMW Developments Ltd
[2012] EWHC 1773 (TCC) · TCC · Akenhead J · 11 July 2012 ·Find Case Law
“It can certainly be seen with hindsight, and could probably have been foreseen, that the project was "a disaster waiting to happen".”
“it must be for the Court to decide as a matter of fact what delayed the Works and for how long”
“the Contractor has to demonstrate on a balance of probabilities that, first, events occurred which entitle it to loss and expense, secondly, that those events caused delay and/or disruption and thirdly that such delay or disruption caused it to incur loss and/or expense”
“both delay experts' approach (albeit to a lesser extent Mr Robinson's) involved in reality doing the exercise that the Court must do which is essentially a factual analysis as to what probably delayed the Works overall”
“by way of costs, which is obviously disproportionate to what is in dispute”
“although of persuasive weight, the City Inn case is inapplicable within this jurisdiction.”
“it is A which is delaying the work because B is going to finish earlier; overall completion is therefore dictated by the length of time needed for A”
“In the assessment of what events caused what overall or critical delay, one needs also to bear in mind that it is not necessarily the last item or area of work which is finished last which causes delay.”
“What one can not do is to identify the last of a number of events which delayed completion and then say it was that last event at the end which caused the overall delay to the Works. One needs to consider what critically delayed the Works as they went along.”
“An underlying problem, accepted as such by both experts, was the absence of a contemporaneous critical path programme from February 2007 onwards.”
“The fact that the Architect has to award a "fair and reasonable" extension does not imply that there should be some apportionment in the case of concurrent delays. The test is primarily a causation one.”
“Fundamental to this exercise is an assessment of whether the relevant event occurring during a period of culpable delay has caused delay to the completion of the Works and, if so, how much delay.”
“This makes sense so that the parties and the Architect can plan for the rest of the job.”
“This is not an optional exercise: the word "shall" is clearly and intended to be mandatory.”
“No later than 12 weeks after Practical Completion, the Architect must carry out the final extension of time exercise, irrespective of whether notices and the particulars have been provided.”
“a court or arbitrator has the advantage when reviewing what extensions were due of knowing what actually happened.”
“The debate about the "prospective" or "retrospective" approach to delay analysis was also sterile because both delay experts accepted that, if each approach was done correctly, they should produce the same result.”
“This will necessarily be a retrospective exercise because Practical Completion will have passed and all the delays (whatever the causes) will have occurred.”
“When that exercise can be done, the experts take what are called time slices (usually every month) to review against the programming logic the actual progress achieved and likely to be achieved in the future.”
“The fact that the Architect has to award a "fair and reasonable" extension does not imply that there should be some apportionment in the case of concurrent delays. The test is primarily a causation one.”
“Second, it is agreed that if there are two concurrent causes of delay, one of which is a relevant event, and the other is not, then the contractor is entitled to an extension of time for the period of delay caused by the relevant event notwithstanding the concurrent effect of the other event.”
“the English approach that the Contractor is entitled to a full extension of time for the delay caused by the two or more events (provided that one of them is a Relevant Event) and the Scottish approach which is that the Contractor only gets a reasonably apportioned part of the concurrently caused delay.”
“The learned judge said that the "net" method was correct.”
“if the linkage between the relevant event and the need to provide a greater resource is established, the costing of it is established by showing how many man weeks were consequently necessary and how much the salary cost was for those man weeks.”
“What is commonly referred to as a global claim is a contractor's claim which identifies numerous potential or actual causes of delay and/or disruption, a total cost on the job, a net payment from the employer and a claim for the balance between costs and payment which is attributed without more and by inference to the causes of delay and disruption relied on.”
“I can see no reason why he should not recognise the realities of the situation and make individual awards in respect of those parts of individual items of the claim which can be dealt with in isolation and a supplementary award in respect of the remainder of those claims as a composite whole.”
“There is nothing in principle "wrong" with a "total" or "global" cost claim.”
“It is wrong, as Counsel suggested, that the burden of proof in some way transfers to the defending party.”
“is not on analysis supported by those authorities and is wrong.”
“The Wharf case was therefore concerned with a pleading issue”
“The job started with remarkably little design, there were hundreds of variations, there was throughout the project hopelessly late provision of information and instructions to WLC”
“it took the risk that there might be more.”
“The fact that one or a series of events or factors (unpleaded or which are the risk or fault of the claimant contractor) caused or contributed (or cannot be proved not to have caused or contributed) to the total or global loss does not necessarily mean that the claimant contractor can recover nothing.”
“assuming that this time can be quantified either precisely or at least by way of assessment, that amount would be deducted from the global loss.”
“most of the matters which entitle the Contractor to such loss and expense are the "fault" or at least the risk of the Employer, such as variations or the late provision of information or instructions by the Architect”
“Ordinarily, in order to make a relevant claim for contractual loss and expense under a construction contract (or a common law claim for damages) the pursuer must aver (1) the occurrence of an event for which the defender bears legal responsibility, (2) that he has suffered loss or incurred expense, and (3) that the loss or expense was caused by the event.”
“It was a reasonably sophisticated, contemporaneously maintained system (which remained available for inspection during the proceedings), supported by disclosed contemporaneous allocation sheets and contemporaneously cross-checked by a financial controller with people on site.”
“if the linkage between the relevant event and the need to provide a greater resource is established, the costing of it is established by showing how many man weeks were consequently necessary and how much the salary cost was for those man weeks.”
“that loss being the loss of its opportunity to defray its head office overheads over those other projects and the loss of profit from those lost jobs”
“It is necessary for the contractor to prove on a balance of probabilities that if the delay had not occurred it would have secured work or projects which would have produced a return (over and above costs) representing a profit and/or a contribution to head office overheads.”
“the opportunities received and declined were precisely detailed on a comprehensive schedule attached to Mr Corless' statement.”
“The use of a formula, such as Emden or Hudson, is a legitimate and indeed helpful way of ascertaining, on a balance of probabilities, what that return can be calculated to be.”
“Put another way if the need to settle with those parties was caused by delay and disruption caused by DMW and the settlement fell within the "reasonable range of settlement" (see Ramsey J above), WLC can recover.”
“In my judgement, it would be safer to allow some amount off the full amount of the settlement”
White Constructions Pty Ltd v PBS Holdings Pty Ltd
[2019] NSWSC 1166 · Supreme Court of New South Wales (Equity, Technology and Construction List) · Hammerschlag J · 6 September 2019 ·Source
“Plainly, both experts are adept at their art. But both cannot be right. It is not inevitable that one of them is right.”
“Mr McIntyre's opinion, upon which I propose to act, is that neither method is appropriate to be adopted in this case.”
“Mr McIntyre's opinion, upon which I propose to act, is that for the purpose of any particular case, the fact that a method appears in the Protocol does not give it any standing, and the fact that a method, which is otherwise logical or rational, but does not appear in the Protocol, does not deny it standing.”
[2010] EWHC 1460 (TCC) · High Court (Technology and Construction Court) · Akenhead J · 21 June 2010 ·Find Case Law
“The Employer through its Counsel has expressly conceded that Clause 4.25, even as amended, does not operate to prevent the Contractor's claims at common law, including claims for damages for breach of contract, from being pursued even if Clause 4.21 as a whole has not been complied with by the Contractor. In my judgement, that was a proper concession to make.”
Housing Grants, Construction and Regeneration Act 1996
Housing Grants, Construction and Regeneration Act 1996 (1996 c.53) ·Source
“A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this section.”
“enable the adjudicator to take the initiative in ascertaining the facts and the law”
“enable a party to give notice at any time of his intention to refer a dispute to adjudication;”
Practice Direction 57AD, Disclosure in the Business and Property Courts
CPR PD 57AD · Business and Property Courts ·Source
“It also extends to metadata, and other embedded data which is not typically visible on screen or a printout.”
“an obligation to suspend relevant document deletion or destruction processes for the duration of the proceedings”
“disclosable electronic documents to the other parties by providing electronic copies in the documents' native format, in a manner which preserves metadata”
“open up, revise and review any decision taken or any certificate given by any person referred to in the contract unless the contract states that the decision or certificate is final and conclusive”
FIDIC Conditions of Contract for Construction (Red Book), Second Edition 2017
FIDIC Red Book (2nd ed, 2017), first printing ·Source
“all activities (to the level of detail stated in the Specification), logically linked and showing the earliest and latest start and finish dates for each activity, the float (if any), and the critical path(s);”
“The Contractor shall proceed in accordance with the Programme, subject to the Contractor's other obligations under the Contract. The Employer's Personnel shall be entitled to rely on the Programme when planning their activities.”
“The Employer shall only be entitled to claim any payment from the Contractor and/or to extend the DNP, or set off against or make any deduction from any amount due to the Contractor, by complying with this Sub-Clause 20.2.”
“and the other Party shall be discharged from any liability in connection with the event or circumstance giving rise to the Claim.”
“(a) a Variation (except that there shall be no requirement to comply with Sub-Clause 20.2 [Claims For Payment and/or EOT]);”
“If the Engineer does not give such a Notice within this period of 14 days, the Notice of Claim shall be deemed to be a valid Notice.”
“The agreement or determination of the Claim shall include whether or not the Notice of Claim shall be treated as a valid Notice taking account of the details (if any) included in the fully detailed claim of the claiming Party's disagreement with such Notice(s) or why late submission is justified (as the case may be).”
“as soon as practicable, and no later than 28 days after the claiming Party became aware, or should have become aware, of the event or circumstance”
“If within this time limit the claiming Party fails to submit the statement under sub-paragraph (b) above, the Notice of Claim shall be deemed to have lapsed”
“When carrying out his/her duties under this Sub-Clause, the Engineer shall act neutrally between the Parties and shall not be deemed to act for the Employer.”
“the Engineer shall review previous determinations under Sub-Clause 3.7 [Agreement or Determination] and may increase, but shall not decrease, the total EOT.”
“If no NOD is given by either Party within the period of 28 days stated in sub-paragraph (c) above, the determination of the Engineer shall be deemed to have been accepted by both Parties and shall be final and binding on them.”
“If a delay caused by a matter which is the Employer's responsibility is concurrent with a delay caused by a matter which is the Contractor's responsibility, the Contractor's entitlement to EOT shall be assessed in accordance with the rules and procedures stated in the Special Provisions (if not stated, as appropriate taking due regard of all relevant circumstances).”
“the Contractor shall adopt these revised methods, which may require increases in the working hours and/or in the numbers of Contractor's Personnel and/or the Goods, at the Contractor's risk and cost.”
“In this Sub-Clause 20.2, "contemporary records" means records that are prepared or generated at the same time, or immediately after, the event or circumstance giving rise to the Claim.”
“"Cost" means all expenditure reasonably incurred (or to be incurred) by the Contractor in performing the Contract, whether on or off the Site, including taxes, overheads and similar charges, but does not include profit.”
“These Delay Damages shall be the only damages due from the Contractor for the Contractor's failure to comply with Sub-Clause 8.2 [Time for Completion], other than in the event of termination under Sub-Clause 15.2 [Termination for Contractor's Default] before completion of the Works.”
“The decision shall be binding on both Parties, who shall promptly comply with it whether or not a Party gives a NOD with respect to such decision under this Sub-Clause.”
“any impediment, prevention or default, whether by act or omission, by the Employer or any”
“shall not limit or affect any other rights and remedies of the Contractor.”
“because regular progress of the Works or any part of them has been or is likely to be materially affected by any Relevant Matter, he shall, subject to clause 4·19·2 and compliance with the provisions of clause 4·20 be entitled to reimbursement of that loss and/or expense.”
“Section is being or is likely to be delayed the Contractor shall forthwith give notice to the”
“whether on reviewing a previous decision or otherwise and whether or not the Relevant Event has been specifically notified by the Contractor under clause”
“the Employer shall give an extension of time by fixing such later date as the Completion Date for the Works or Section as he then estimates to be fair and reasonable.”
“fix a Completion Date earlier than that previously fixed if that is fair and reasonable having regard to any instructions for Relevant Omissions”
“all and only such extensions of time, if any, as are due under clause”
“shall state that for the period between the Completion Date and the date of practical completion of the Works or that Section:”
“if he intends to withhold or deduct all or any of the liquidated damages payable, must give the appropriate Pay Less Notice”
“If the Employer fixes a later Completion Date for the Works or a Section, the Employer shall pay or repay to the Contractor any amounts recovered, allowed or paid under clause”
“shall reduce by the same proportion as the value of the Relevant Part bears to the Contract Sum or to the relevant Section Sum, as shown in the Contract Particulars.”
“fails to proceed regularly and diligently with the performance of his obligations under this Contract”
“Without affecting his obligations under clauses 2·1 and 2·3, the Contractor shall be under no obligation to accelerate, or take any steps for that purpose, until he receives a Confirmed Acceptance of his Acceleration Quotation under paragraph 4·3.”
“the Contractor shall constantly use his best endeavours to prevent delay in the progress of the Works or any Section, however caused, and to prevent the completion of the Works or Section being delayed or further delayed beyond the relevant Completion Date;”
“the Employer has notified the Contractor before the due date for the final payment”
“If any dispute or difference arises under this Contract, either Party may refer it to adjudication in accordance with clause”
JCT Standard Building Sub-Contract Conditions 2016
JCT Standard Building Sub-Contract Conditions 2016 (SBCSub/C 2016)
“any impediment, prevention or default, whether by act or omission, by the Contractor or any Contractor's Person”
“Any amount agreed by the Parties as due in respect of any loss and/or expense thereby caused to the Contractor may be deducted from any sums due or to become due to the Sub-Contractor or shall be recoverable by the Contractor from the Sub-Contractor as a debt.”
NEC4 Engineering and Construction Contract (June 2017, with amendments January 2019 and October 2020)
NEC4 ECC (June 2017, amended January 2019 and October 2020)
“provisions for float, time risk allowances, health and safety requirements and the procedures set out in the contract,”
“A delay to the Completion Date is assessed as the length of time that, due to the compensation event, planned Completion is later than planned Completion as shown on the Accepted Programme current at the dividing date.”
“the value of which, by comparison with the weather data, is shown to occur on average less frequently than once in ten years.”
“the compensation event is assessed as if the Contractor had given the early warning.”
“If the Contractor does not notify a compensation event within eight weeks of becoming aware that the event has happened, the Prices, the Completion Date or a Key Date are not changed unless the event arises from the Project Manager or the Supervisor giving an instruction or notification, issuing a certificate or changing an earlier decision.”
“The rights of the Client and the Contractor to changes to the Prices, the Completion Date and the Key Dates are their only rights in respect of a compensation event.”
“The Contractor and the Project Manager give an early warning by notifying the other as soon as either becomes aware of any matter which could”
“review and revise any action or inaction of the Project Manager or Supervisor related to the dispute and alter a matter which has been treated as accepted or correct,”
“The change to the Prices is assessed as the effect of the compensation event upon the actual Defined Cost of the work done by the dividing date, the forecast Defined Cost of the work not done by the dividing date and the resulting Fee.”
“(2) Completion is when the Contractor has done all the work which the Scope states is to be done by the Completion Date and corrected notified Defects which would have prevented the Client from using the works or Others from doing their work.”
“The Contractor pays delay damages at the rate stated in the Contract Data for each day from the Completion Date until the earlier of Completion, the date on which the Client takes over the works and the date on which the Project Manager issues a termination certificate.”
“The Contractor and the Project Manager may propose to the other an acceleration to achieve Completion before the Completion Date.”
“The Contractor shows on each revised programme the actual progress achieved on each operation and its effect upon the timing of the remaining work, how the Contractor plans to deal with any delays and to correct notified Defects and any other changes which the Contractor proposes to make to the Accepted Programme.”
“Only the difference between the weather measurement and the weather which the weather data show to occur on average less frequently than once in ten years is taken into account in assessing a compensation event.”
“The Adjudicator's decision is final and binding if neither Party has notified the other within the times required by the contract that it is dissatisfied with a matter decided by the Adjudicator and intends to refer the matter to the tribunal.”
“If the Subcontractor does not notify a compensation event within seven weeks of becoming aware that the event has happened, the Prices, the Subcontract Completion Date or a Key Date are not changed unless the event arises from the Contractor giving an instruction or notification, issuing a certificate or changing an earlier decision.”
AACE International Recommended Practice No. 29R-03, Forensic Schedule Analysis
AACE RP 29R-03, Forensic Schedule Analysis (Rev. 25 April 2011) ·Source
“The purpose of quantifying the near-critical path is to reduce the effort of identifying and analyzing potential concurrent delays.”
“Because of this technical reason, the critical set of as-built activities is often called the controlling activities as opposed to critical activities.”
“In the absence of contrary contractual language, network float is a shared commodity between the owner and the contractor.”
“Current usage of these names throughout the industry is loose and undisciplined.”
“When a project is executed under a contract that specifies or mandates a specific schedule delay analysis method, then the choice of method is largely taken out of the hands of the forensic schedule analyst, and contract compliance is the prevailing factor.”
“This is not (currently) a recognized concept under English law.”
“Disruption has been described as the effect of change on unchanged work which manifests itself primarily as adverse labor productivity impacts.”
Society of Construction Law Delay and Disruption Protocol (2nd edition, February 2017)
SCL Delay and Disruption Protocol (2nd edn, February 2017) ·Source
“In referring to 'delay', the Protocol is concerned with time – work activities taking longer than planned.”
“The longest sequence of activities through a project network from start to finish, the sum of whose durations determines the overall project duration. There may be more than one critical path depending on workflow logic. A delay to progress of any activity on the critical path will, without acceleration or re-sequencing, cause the overall project duration to be extended, and is therefore referred to as a 'critical delay'.”
“Disruption (as distinct from delay) is a disturbance, hindrance or interruption to a Contractor's normal working methods, resulting in lower efficiency.”
“It is possible for work to be disrupted and yet for the works still to be completed by the contract completion date. In this situation, the Contractor will not have a claim for an EOT, but it may have a claim for the cost of the lost productivity.”
“The construction industry often associates or conflates delay and disruption.”
“It is a common misconception in the construction industry that if the Contractor is entitled to an EOT, then it is also automatically entitled to be compensated for the additional time that it has taken to complete the contract.”
“They are sometimes misleadingly called 'neutral events'; in fact, they are only neutral in the sense that one party bears the time risk and the other party bears the cost risk.”
“Of course, time means money.”
“The Employer is the party under the contract who agrees to pay for the works.”
“Contracting parties should reach a clear agreement on the type of records to be kept and allocate the necessary resources to meet that agreement. Further, to assist in managing progress of the works and to reduce the number of disputes relating to delay and disruption, the Contractor should prepare and the Contract Administrator (CA) should accept a properly prepared programme showing the manner and sequence in which the Contractor plans to carry out the works. The programme should be updated to record actual progress, variations, changes of logic, methods and sequences, mitigation or acceleration measures and any EOTs granted. If this is done, then the programme can be more easily used as a tool for managing change and determining EOTs and periods of time for which compensation may be due.”
“Therefore, the Protocol must be considered against (and give way to) the contract and governing law which regulate the relationships between project participants.”
“A tool that divides the works into a series of activities, each with a duration and logic links to preceding and succeeding activities, forming a network of activities.”
“The convention in Figure 1 shows the normal sequential relationship of one activity following another. Activity B cannot start until activity A has finished.”
“The programme may be depicted in a number of different forms, including a Gantt or bar chart, line-of-balance diagram, pure logic diagram, time-scaled logic diagram or as a time-chainage diagram, depending on the nature of the works.”
“The Contractor's proposed programme should be provided in its native electronic form to the CA (not just as a PDF).”
“Activities with the least float are generally considered to be on the critical path of the works.”
“The amount of time that an activity may be delayed beyond its early start/early finish dates without delaying the contract completion date.”
“The duration contingency directly related to a single activity built into the planned duration of that activity.”
“When programming software utilises multiple work day calendars, reliance on float values is cautioned and must be combined with other measures to determine the critical path.”
“delays which impact the completion date must, by definition, reside on the critical path”
“The 'ownership' of float causes particular arguments in disputes over entitlement to an EOT.”
“Float values in a programme are an indication of the relative criticality of activities and, generally, when float is exhausted, the completion date will be impacted. Unless there is express provision to the contrary in the contract, where there is remaining total float in the programme at the time of an Employer Risk Event, an EOT should only be granted to the extent that the Employer Delay is predicted to reduce to below zero the total float on the critical path affected by the Employer Delay to Completion (i.e. if the Employer Delay is predicted to extend the critical path to completion).”
“Under contracts where the Employer Delay has to affect the contract completion date, if an Employer Delay occurs first and uses up all the total float, then the Contractor can find itself in delay and paying liquidated damages as a result of a subsequent Contractor Delay which would not have been critical if the Employer Delay had not occurred first.”
“If as a result of an Employer Delay, the Contractor is prevented from completing the works by the Contractor's planned completion date (being a date earlier than the contract completion date), the Contractor should in principle be entitled to be paid the costs directly caused by the Employer Delay, notwithstanding that there is no delay to the contract completion date (and therefore no entitlement to an EOT).”
“The Protocol recommends that the most recent Updated Programme (or, if there is none, the Accepted Programme) should be the primary tool used to guide the CA in assessing an EOT application.”
“The benefit of an EOT for the Employer is that it establishes a new contract completion date, prevents time for completion of the works becoming 'at large' and allows for coordination / planning of its own activities.”
“Where the wording of the EOT clause in a contract is such that an EOT is only to be granted if the Employer Delay delays completion beyond the contract completion date, then the likely effect of that wording is that total float has to be used up before an EOT will be due.”
“the Contractor is nearly always required to claim its entitlement to an EOT under one provision of the contract and its entitlement to compensation for that prolongation under another provision.”
“Such wording is needed because the English courts have held that wording such as 'any other special circumstances' does not cover breaches by the Employer.”
“The goal of the EOT procedure is the ascertainment of the appropriate contractual entitlement to an EOT; the analysis should not start from a position of considering whether the Contractor needs an EOT in order not to be liable for liquidated damages.”
“Employer Delay to Completion does not exonerate the Contractor for all its delays prior to that Employer Delay to Completion occurring.”
“Given that it is difficult if not impossible to withdraw an EOT once granted, it is reasonably to be expected that, where the CA has not been presented with the information on which to base its decision, the CA will award only the minimum EOT that can be justified at the time.”
“A 'wait and see' approach to assessing EOT is discouraged.”
“In the Protocol, this means a delay which will merely cause delay to the Contractor's progress without causing a contract completion date not to be met. It is either an Employer Delay to Progress or a Contractor Delay to Progress.”
“In common usage, this expression may mean either delay to the date when the contractor planned to complete its works, or a delay to the contract completion date. The Protocol uses the expressions Employer Delay to Completion and Contractor Delay to Completion, both of which mean delay to a contract completion date”
“Other methods start with identifying critical delay (an effect) and thereafter seek to establish what might have caused that delay”
“Delay impact is determined in one of two different ways. A prospective delay analysis identifies the likely impact of historical progress or delay events on a completion date.”
“The conclusions of a prospective delay analysis may not match the as-built programme because the Contractor's actual performance may well have been influenced by the effects of attempted acceleration, re-sequencing or redeployment of resources”
“then the two assessments of time may produce different results. This is only to be expected, and does not necessarily indicate errors in either method.”
“However, it is not the responsibility of the CA, adjudicator, judge or arbitrator to identify such events and quantify their effect in circumstances where the Contractor has failed to do so.”
“There are six commonly used methods of delay analysis, and these are described more particularly below.”
“Certain methods start with the identification and description of an event (a cause) and thereafter seek to establish its impact (the effect)”
“Where the EOT application is assessed after completion of the works, or significantly after the effect of an Employer Risk Event, then the effect and cause methods are generally considered to be more forensically reliable because they consider any and all potential causes of the delay incurred.”
“As identified above, the Protocol distinguishes between the determination of the critical path and the determination of the delay impact.”
“For example, in both the time impact analysis and time slice windows analysis methods (which are explained below), the critical path is determined on a contemporaneous basis.”
“The time impact analysis involves introducing delay event sub-networks into a logic-linked baseline programme and recalculation of this updated programme using CPM programming software in order to determine the prospective impact the delay event would have on the then predicted completion dates.”
“The collapsed as-built (or but-for) analysis method involves the extraction of delay events from the as-built programme to provide a hypothesis of what might have happened had the delay events not occurred. This method does not require a baseline programme.”
“A limitation to this method is that it measures only incremental delay to the critical path, because the completion date will not collapse further than the closest near critical path.”
“For each time slice programme the analyst needs to verify that the historical components reflect the actual progress of the works and that its future sequences and durations for the works are reasonable, realistic and achievable and properly logically linked within the software.”
“The analyst determines the contemporaneous or actual critical path in each window by a common-sense and practical analysis of the available facts. As this task does not substantially rely on programming software, it is important that the analyst sets out the rationale and reasoning by which criticality has been determined.”
“Once completed, the analyst then traces the longest continuous path backwards from the actual completion date to determine the as-built critical path.”
“A limitation to this method is its more limited capacity to recognise and allow for switches in the critical path during the course of the works.”
“Other methods, which may be reasonably deployed in particular circumstances having considered the criteria in paragraph 11.3 above, include: project wide retrospective as-planned versus as-built analysis (i.e. not in windows), time chainage analysis, line of balance analysis, resource curve analysis, and earned value analysis.”
“There is no longer a preferred delay analysis methodology where that analysis is carried out time-distant from the delay event or its effect.”
“(a) the relevant conditions of contract; (b) the nature of the causative events; (c) the nature of the project; (d) to ensure a proportionate approach, the value of the project or dispute; (e) the time available; (f) the nature, extent and quality of the records available; (g) the nature, extent and quality of the programme information available; and (h) the forum in which the assessment is being made.”
“Failure to consult the other party on delay analysis methodology is a matter that the Protocol considers might be taken into account by the adjudicator, judge or arbitrator in awarding and allocating recoverable costs of the dispute.”
“True concurrent delay will be a rare occurrence.”
“some kinds of delay events which are at the risk of the Employer so far as time for completion is concerned carry no entitlement to compensation for prolongation; delay resulting from adverse weather conditions being the most common example.”
“In most cases this will mean that the Contractor will be entitled to compensation only for any period by which the Employer Delay exceeds the duration of the Contractor Delay.”
“a Contractor Risk Event will result in five weeks Contractor Delay to Completion, delaying the contract completion date from 21 January to 25 February.”
“Tender documents may be relevant to demonstrating the reasonableness of claimed costs in periods affected by delay or disruption events or the enforceability of the liquidated damages provisions.”
“The main effect of an EOT is that the Contractor is relieved of its liability for liquidated damages during the period of the extension and is able to reprogramme its works to completion.”
“The application of additional resources or alternative construction sequences or methodologies seeking to achieve the planned scope of work in a shorter time than planned or execution of additional scope of work within the original planned duration.”
“For all delay, disruption and acceleration claims, the claim document must explain the legal basis for entitlement, whether that is under the contract (in which case, identify and apply the relevant provisions) or at law (in which case, identify and apply the relevant legal basis). This is because delay, disruption and acceleration are not causes of action in their own right.”
“Acceleration is a subset of mitigation, and typically refers to the situation where additional costs are incurred to seek to overcome all or part of delay or disruption (for example, to ensure that that the contract completion date is achieved).”
“Before implementing acceleration measures, it is worth bearing in mind that, of themselves, these measures can lead to disruption. However, if reasonable acceleration measures are adopted, that disruption ought to be offset by the overall delay recovery achieved in the absence of other intervening events.”
“Some forms of contract provide for acceleration by instruction or by collateral agreement. In other forms, acceleration may be instructed by reference to hours of working and sequence. The Contractor cannot be instructed to accelerate to reduce Employer Delay, unless the contract allows for this.”
“Where acceleration is instructed and/or agreed, the Contractor is not entitled to claim prolongation compensation for the period of Employer Delay avoided by the acceleration measures.”
“Acceptance by the CA of such a proposed revised programme does not constitute acceptance or waiver of the Contractor Delay, and requiring the Contractor to propose measures to recover delay is not an instruction or a deemed instruction to accelerate the works at the Employer's cost.”
“Subject to express contract wording or agreement to the contrary, the duty to mitigate does not extend to requiring the Contractor to add extra resources or to work outside its planned working hours.”
“Note that the requirement in the UK Joint Contracts Tribunal (JCT) contracts for the Contractor to use 'best endeavours' to prevent delay in the progress of the works and prevent completion of the works being delayed beyond the completion date may place a higher burden on the Contractor than the normal duty to mitigate.”
“Where the Employer is responsible for that delay or disruption, the Contractor may claim its acceleration costs from the Employer.”
“Just because the Contractor implements measures to recover Employer Delay does not necessarily mean that the full costs of those measures were caused by the Employer Delay.”
“Acceleration following failure by the CA to recognise that the Contractor has encountered Employer Delay for which it is entitled to an EOT and which failure required the Contractor to accelerate its progress in order to complete the works by the prevailing contract completion date. This situation may be brought about by the Employer's denial of a valid request for an EOT or by the CA's late granting of an EOT.”
“This is rarely recognised under English law.”
“the Contractor should first take steps to have the dispute or difference about entitlement to an EOT resolved in accordance with the contract dispute resolution provisions.”
“An Employer should be aware that if it instructs a variation after the contract completion date where the failure to complete by the contract completion date has been caused by Contractor Delay, the Employer may lose its entitlement to liquidated damages if the Contractor then accelerates to recover the Contractor Delay to Completion at its own cost and that results in the variation (an Employer Risk Event) becoming the effective cause of Delay to Completion.”
“Typically, both claims will be advanced, but it must be recognised in the second claim that a credit has to be given for any recovery in the first claim.”
“Disruption events can have a direct effect on the works by reducing productivity (such as piecemeal site access different from that planned, out of sequence works or design changes).”
“crowding of labour or stacking of trades, dilution of supervision through fragmented work gangs, excessive overtime (which can lead to fatigue), repeated learning cycles and poor morale of labour”
“Further, any resulting crowding of labour may lead to loss of productivity which could then form the basis of a disruption claim.”
“The productivity loss caused by all other events must be excluded from the claim.”
“Disruption is also not a cause of action at law in its own right.”
“It is not intended that the Protocol should be a contract document. Nor does it purport to take precedence over the express terms and governing law of a contract or be a statement of the law.”
“That quantum is the cost of the productivity loss, which will be the difference between realistic and achievable productivity and that which was actually achieved in carrying out the impacted work activities as a result of the disruption events for which the Employer is responsible.”
“This identifies the amount of man-hours reasonably included in the tender allowance for completing certain work activities and compares this with the actual man-hours for completing those work activities.”
“Original tender assumptions should not automatically be considered as a 'realistic and achievable' baseline.”
“Of these, and subject to the availability of the necessary records, the measured mile analysis is the most widely accepted method of calculating lost productivity.”
“it would not be correct to compare work carried out in the learning curve part of a project with work executed after that period.”
“the more that are applied, the more theoretical and unreliable the analysis will become.”
“There are three general categories of productivity-based methods, listed below by order of preference because of their decreasing reliability and general acceptance: (a) project-specific studies; (b) project-comparison studies; and (c) industry studies.”
“If these records are not available, this method is unlikely to be persuasive, although factual witness evidence may assist.”
“are however liable to be criticised as being theoretical and so should be used with caution.”
“Costs-based methods are unlikely to be persuasive where there are productivity-based methods that can reasonably be deployed in the circumstances.”
“This is an area where particular care has to be taken to address the risks associated with global claims. However, if all causes of disruption can genuinely be said to be the Employer's responsibility, and if the financial consequences of those disruption events are impossible or impracticable to distinguish, then such an approach may be valid and indeed persuasive.”
“the Contractor will need to demonstrate the correlation between those costs and the loss of productivity in the direct resources.”
“The Contractor must be aware that there is a risk that a global claim will fail entirely if any material part of the global loss can be shown to have been caused by a factor or factors for which the Employer bears no responsibility and it is not possible for the CA, adjudicator, judge or arbitrator to assess the value of that non-recoverable portion on the available evidence.”
“The not uncommon practice of contractors making composite or global claims without attempting to substantiate cause and effect is discouraged by the Protocol, despite an apparent trend for the courts to take a more lenient approach when considering global claims.”
“Entitlement to an EOT does not automatically lead to entitlement to compensation (and vice versa).”
“Compensation for prolongation resulting from Employer Risk Events will primarily comprise the Contractor's extended use of time-related resources, notably its site overheads. It is, however, not possible to say that compensation for prolongation comprises exclusively additional time-related resources because other types of recoverable loss may result from Employer Risk Events.”
“However, there may also be an impact on indirect resources, such as supervision staff or standing plant (i.e. where such resources are increased rather than merely extended), leading to additional costs.”
“indirect costs (on-site overheads and head office overheads), whether time-related or otherwise.”
“It is a common misunderstanding in the construction industry that if the Contractor has made no or inadequate allowance for site overheads in its tender, then that fact limits or removes its entitlement to compensation for prolongation and/or disruption where the basis of recovery is actual cost incurred. This is not correct.”
“Once it is established that compensation for prolongation is due, the evaluation of the sum due is made by reference to the period when the effect of the Employer Risk Event was felt, not by reference to the extended period at the end of the contract.”
“Compensation may be recovered for disruption only to the extent that the contract permits or there is an available cause of action at law.”
“Amongst other things, these overheads may include such things as rent, rates, directors' salaries, pension fund contributions and auditors' fees.”
“A formula just serves as a tool for the quantification of the loss”
“Contractors therefore need only establish that the loss was actually suffered.”
“The appropriate starting date will not be the same in all circumstances, but generally the starting date for the payment of interest should be the earliest date on which the principal sum could have become payable, which will be the date for payment of the certificate issued immediately after the date the Contractor applied for payment of the loss and/or expense. This will be subject to any notice requirements in the contract.”
“The Contractor should not be entitled to additional costs for the preparation of that information, unless it can show that it has been put to additional cost as a result of the unreasonable actions or inactions of the CA in dealing with the Contractor's claim.”
“Contracting parties should reach a clear agreement on the type of records to be kept and allocate the necessary resources to meet that agreement.”
“This Appendix lists the typical records within each of the six categories described (programme, progress, resource, costs, correspondence and administration, and contract and tender documents)”
“No version of any programme should be overwritten”
“The failure to maintain such records is unlikely to justify the Contractor in making a global claim.”
“it is recommended that the parties try to agree an appropriate method of delay analysis before each embarks upon significant work on an after the event delay analysis”
“a contractor could well be accomplishing the planned rate of production of 300 linear feet of pipe/day in the ground but be expending twice the amount of labor planned to accomplish this daily production rate, for example. In this case, the contractor would be accomplishing 100% of planned production but operating at 50% productivity.”
“if the work of the project is shut down for some period of time and labor crews laid off, then when work recommences the labor crews brought back to the project may have to go through another learning curve.”
“there is very little loss of productivity that does not involve some element of delay followed by attempted or actual acceleration somewhere in its chain of causation.”
“properly performed measured mile studies are preferred to earned value analyses which, in turn, are considered more credible than work sampling or craftsmen questionnaires.”
“It must also be noted the optimal productivity is rarely if ever at the maximum production rate.”
“other variables, which could affect productivity but are unrelated to the claimed impacts, must be accounted for and removed from the impacted period calculation to the extent these variables occurred during the least or unimpacted period.”
“Failing to deduct the additional labor hours already paid for in change orders or extra work orders”
“take the Court through the documents in the case or set out a narrative derived from the documents, those being matters for argument”
“The parties must identify the issues with which each expert should deal in his or her report.”
“It is generally sensible for the experts to meet at least once before they exchange their reports.”
“Where an expert relies on data contained within any spreadsheet, or any calculation performed using software such as Excel, any such spreadsheet or calculation must be disclosed to the other parties in its native format at the same time as the report relying on that data.”
“The purpose is not to introduce new evidence but to explain the existing evidence.”
