Time, Completion and Delay Damages

Time, Completion and Delay Damages

1. Site access

   • Failure to give access is a repudiatory breach

2. The obligation to complete

   • Implied term
     • Supply of Goods and Services Act 1982
     • Charnock v Liberpool Corpn [1968]
   • Completion ceases to apply if:
     • breach of contract or act of prevention by the employer
     • no applicable provision for extension of time
       • Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd
         • Damages restricted to general only
   • EOT clauses protect the contractor against liability for delay
     • If no express provision for EOT - Time is said to be "at large"
       • Complete within a reasonable time
         • No certain LD date
   • Time not generally of the essence
     • Employer can serve notice to make time of the essence, if sufficient time has elapsed
       • Behzadi v Shaftesbury Hotels Ltd

3. Obligation to progress the works

   • In the absence of express provision, business efficacy may require dilligent and reasonable progress
     • GLC v Cleveland Bridge and Engineering
     • Express provision
       • “expressly and diligently” or with “due expedition and without delay”

4. Extension of time

   • Contractor liable for delay unless
     • EOT awarded
     • Time is at large
       • To avoid this - contracts include provisions for Employer delay
         • Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd
   • Note condition precedent of contracts
   • Arbitrators can open up and revise up or down, EOT awards
   • Contracts contain rules relating to EOT
     • John Barker Construction Limited v London Portman Hotel Limited

5. Liquidated Damages

   • Contra preferentum rule applies
   • LD's may not be granted if they are penal, failure to follow condition precedent, acts of prevention by the employer
   • Unliquidated damages
     • Bovis Construction v Whatlings Construction Ltd
       • Failure to mitigate
   • Effect of £NIL insertion
     • Temloc Ltd v Errill Properties Limited
   • Limitations
     • Unenforceable penalty
       • Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Company Ltd “extravagant and unconscionable
     • Time at large
     • Condition precedent
       • Avoncroft Construction Limited v Sharba Homes
     • Waiver or estoppel

6. Concurrent Delay

   • Three credible theories exist
     • Dominant cause
     • Malmaison case
     • City Inn