Delay disputes are rarely caused by a single event. Late information, restricted access, variations, subcontractor performance and changes to sequencing can develop concurrently and affect different parts of the programme.
For that reason, extension-of-time claims depend heavily on the contractual machinery and the contemporaneous evidence created while the project is progressing.
The courts have long recognised the relationship between employer-caused delay and extension-of-time provisions. In Multiplex Constructions UK Ltd v Honeywell Control Systems Ltd No 2 [2007] EWHC 447 (TCC), the Technology and Construction Court confirmed that acts of prevention by an employer do not necessarily put time “at large” where the contract contains an effective mechanism for extending time in respect of those events.
That makes compliance with the contractual extension-of-time provisions particularly important.
Concurrency deserves separate mention, because it is where a great many delay disputes are actually decided. Where an employer risk event and a contractor risk event operate over the same period, the outcome turns on what the contract says. In North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744 the Court of Appeal upheld a bespoke amendment providing that, where contractor delay was concurrent with a relevant event, the concurrent delay was not to be taken into account in assessing the extension of time. Amendments of that kind are now common, and they are far easier to deal with at tender stage than in an adjudication.
A delay claim should develop with the project
Where the contract requires notice of delay, the contractor should not leave the issue until the completion date has passed. The notice should identify the relevant event and, where possible, explain its effect on progress.
Whether a notice provision operates as a condition precedent is a question of construction, and clear words are needed. Where the contract does make notification a condition precedent, a late notice can defeat an otherwise good claim, which is a harsh outcome that is nonetheless regularly enforced. The Society of Construction Law Delay and Disruption Protocol (2nd edition, February 2017) has no binding status, but it remains a useful reference point on notification, record keeping and methods of delay analysis, and adjudicators are used to seeing it cited.
Programme records alone may not establish causation. Site diaries, drawing registers, correspondence, instructions, labour records and meeting minutes can all become important when determining whether an event actually affected completion.
Walter Lilly and Company Ltd v Mackay [2012] EWHC 1773 (TCC) illustrates the evidential complexity that can arise where numerous events and changes affect progress over an extended period.
The employer has an equivalent interest in maintaining a reliable project record. If the position is that the contractor’s own performance caused the delay, the evidence created during the works will be central to that assessment.
Delay claims are therefore as much an exercise in contract administration as dispute resolution. A carefully maintained record gives the parties a far better basis on which to assess extensions of time, liquidated damages and associated financial claims before positions become entrenched.
Accurate at the time of writing. This information is provided for general information purposes only and should not be relied upon as legal advice.
