Delay – what is the common law position? Why is a completion date needed?
If no agreement is reached on the time within which a service must be performed, it only needs to be performed within a reasonable time. Whilst this may be workable in the context of, say, a contract for the delivery of a new washing machine, it is not satisfactory when applied to something as complex as a construction project.

For that reason, it is normal in construction contracts to include a completion date by which the works must be complete. This is usually based on an estimate of how long the project will take, or may simply be determined by the date when the employer wants the project to be completed. Delay which results in a failure to complete on time is generally referred to as critical delay.

What if the contractor is to blame? What if they are not to blame?
In the absence of agreement to the contrary, if the contractor is to blame for the delay they are in breach of contract and the employer is entitled to claim damages in compensation for the delay. This is known as culpable delay.

If the contractor is not to blame (non-culpable delay), the completion date falls away and the contractor just has to complete within a reasonable time, as they would have done if there had been no completion date agreed. This is known as time being “at large” and is again not satisfactory in a construction project.

Extensions of time – how can the completion date be moved?
It is normal for construction contracts to contain an extension of time clause, which has the effect of preserving the completion date by allowing the employer to move it in the event of certain non-culpable critical delays by the contractor.

An extension of time clause is therefore as much for the benefit of the employer as the contractor. A contractor’s entitlement to claim loss and expense for delay is a separate issue, not addressed here, which does not always follow on from an extension of time.

Liquidated damages – how can damages for delay be calculated?
The problem of quantifying the employer’s loss in the event of culpable delay by the contractor is normally overcome in construction contracts by a liquidated damages clause.

Provided that the damages claimed are a genuine pre-estimate of the employer’s loss, such a clause will not be unenforceable as a penalty and the damages will be recoverable without the need to prove loss. Again, this is as much for the benefit of the contractor as the employer because it allows them to budget for delays and adjust their tender accordingly.

Concurrent delay – what happens if both parties cause delay?
Concurrent delays are events occurring at the same time, either of which, had it occurred in isolation, would have caused a delay.

So, what happens if the contractor is in culpable delay at the same time as there is a delay for which he is not responsible? (for example if the contractor runs short of materials at the same time as the employer is asking for variations to the works.)

The law on this point is not entirely clear but the answer is most likely to be that if there are two concurrent causes of delay, one of which would entitle the contractor to an extension of time and one which would not, the contractor is entitled to an extension of time for the period of delay caused by the one event notwithstanding the concurrent effect of the other.


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