Delays

Construction Delays

Construction delays occur when a project does not progress according to the contractual timeline. Delays can be caused by either party, or neither party, and often require complex legal and technical analysis to resolve.

Types Of Construction Delays

1. Employer Delays: These occur when the client (or their representative) hinders project progress. Examples include late access to the site, delayed approvals and late payment
2. Contractor Delays: These are caused by the contractor or subcontractors. Examples include poor project management, labour shortages and supply chain issues
3. Concurrent Delays: This refers to situations when both the employer and contractor cause delays, simultaneously. In such cases, determining liability often requires detailed delay analysis including assessment of causation, impact on critical path and calculation of losses

Extensions Of Time (EOT) & Time At Large

A valid EOT allows a contractor more time to complete works due to qualifying delays. Without it, a contractor may be unfairly penalised for delays beyond their control. If no proper mechanism for EOT exists, time may be set “at large", meaning the contractual completion date falls away and is replaced by the requirement to complete in a "reasonable time”.

Liquidated And Assessed Damages (LADs)

LADs are pre-agreed sums payable by a contractor for late completion. If EOTs are not granted, despite the presence of qualifying delays, LADs may be wrongly levied, leading to disputes and potential legal action.

Relevant Events

Relevant events are contractually specified circumstances that may entitle a contractor to EOTs. These typically include:

1. Variation or change instructions
2. Suspension by the contractor (e.g. for non-payment)
3. Impediment or default by the employer
4. Exceptionally adverse weather
5. Industrial action or strikes
6. Force Majeure events

Each specific circumstance must be assessed carefully to determine its impact and entitlement.

Significance Of Delays

Delays have serious implications in the construction sector. Project delays cause knock-on effects in programme delivery, subcontractor coordination and financing. Financial losses can accumulate quickly, especially if LADs are applied or EOTs are denied, potentially threatening business solvency.

Dealing With Delays

Managing construction delays effectively starts with proactive legal and contractual preparation:

1. Clear Drafting: Ensure that delay clauses are robust, fair and aligned with risk allocation
2. Understand the Contract: Interpret and apply delay clauses correctly. This is critical to risk management
3. Follow Contractual Procedures: Adhere strictly to notice requirements and deadlines. Failure to do so notices may lead to forfeiture of rights and entitlements
4. Maintain records: Maintain thorough and contemporaneous records. This is essential for particularising and substantiating EOT requests and responses and LADs claims and defences
5. Communication: Act early and decisively. Silence can be construed as acceptance
6. Avoid Global Claims: Link each delay event to a specific time impact. Avoid overreaching, composite claims that are unlikely to succeed
7. Act Quickly: Avoid a ‘wait and see’ approach. Delay claims are time-sensitive, and evidence can quickly become diluted or lost

Protection For Employers And Contractors

Well-drafted delay clauses serve both parties to a construction contract. Employers gain certainty on target completion and access to enforceable LADs if works overrun. Contractors benefit from clear rules on EOTs and protection from open-ended claims for general damages.

Legal Assistance

If you need help in relation to delays, including requests for EOTs, assertions that time has been set “at large” and/or claims for LADs, we can help.

Our Team combines legal, technical and evidential experience. Whether you're seeking to enforce your rights or defend against unjust requests for EOTs or LADs, early expert involvement could be critical to achieving your desired outcome.

We recognise that every dispute is unique and strive to offer pragmatic, tailored and creative legal solutions and to maximise outcomes for our clients.

How To Get In Contact

If you require advice on Construction Law and are interested in finding out how we can help, please contact Paul O’Donnell at paul.odonnell@culbertellis.com or call 07521 417579.

‍