![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Technology and Construction Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> North Midland Building Ltd v Cyden Homes Ltd [2017] EWHC 2414 (TCC) (02 October 2017) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2017/2414.html Cite as: [2017] CILL 4051, [2017] EWHC 2414 (TCC), [2017] BLR 605, 174 Con LR 1 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
![]() ![]() ![]() ![]() ![]() ![]() |
||
![]() |
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
||
![]() |
B e f o r e :
____________________
NORTH MIDLAND BUILDING LIMITED |
Claimant |
|
- and - |
||
CYDEN HOMES LIMITED |
Defendant |
____________________
Mr Sean Brannigan QC and Mr Matthew Thorne (instructed by Pinsent Masons LLP) for the Defendant
Hearing date: 14 September 2017
Date draft distributed to parties: 22 September
2017
____________________
Crown Copyright ©
The Honourable Mr Justice Fraser :
"2.25.
1. any of the events which are stated to be a cause of delay is a Relevant Event; and
2. completion of the Works or of any Section has been or is likely to be delayed thereby beyond the relevant Completion Date,
3. and provided that
(a) the Contractor has made reasonable and proper efforts to mitigate such delay; and
(b) 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
then, save where these Conditions expressly provide otherwise, 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."
(i) that the effect of Clause 2.25.1.3(b) is to make time at large where the claimant has a claim to an extension of time for a delay caused by a Relevant Event where that delay is concurrent with another delay for which the claimant is responsible; and
(ii) in such circumstances, the claimant must complete within a reasonable time and liquidated damages are void.
"Whilst no consideration has been made with regards to 'reasonable and proper efforts to mitigate such delay', the delays resulting from Delay Events 1 and 9 have been consumed by culpable delays attributable to North Midland Building [ie the claimant], thus reducing entitlement to an award of an Extension of Time".
(i) Actions by the employer which are perfectly legitimate under a construction contract may still be characterised as prevention, if those actions cause delay beyond the contractual completion date;
(ii) 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;
(iii) Insofar as the extension of time clause is ambiguous, it should be construed in favour of the contractor.
"The third proposition must be treated with care. It seems to me that, insofar as an extension of time clause is ambiguous, the court should lean in favour of a construction which permits the contractor to recover appropriate extensions of time in respect of events causing delay. This approach also accords with the principle of construction set out by Lewison in The Interpretation of contracts (3rd edition 2004). That principle reads as follows:
'Where two constructions of an instrument are equally plausible, upon one of which the instrument is valid and upon the other of which it is invalid, the court should lean towards that construction which validates the instrument.' "
"it is not a question of the Contract being unworkable but, rather, a consequence that, applying Multiplex and in particular by the application by the first and second propositions referred to above, time is at large."
"any impediment, prevention or default, whether by act or omission….."
This sub-clause therefore specifically classifies acts of prevention as Relevant Events. This clause also had words added to it by specific amendment by the parties. In those circumstances, how extensions of time were agreed to be dealt with in terms of acts of prevention is clear. Such acts of prevention were, as Relevant Events, to be taken into account expressly in the way identified in clause 2.25.1.3. This was the specific agreement of the parties. This is four-square within the second of Jackson J's propositions in Multiplex. Rather than supporting the claimant's case, this is directly contrary to it, and application of the proposition is to the effect that time is not at large in these circumstances.
"The conduct therefore has to render it "impossible or impracticable for the other party to do the work within the stipulated time" 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".
"I hold that in relation to both its extension of time claim and its claim in reliance on the prevention principle it [ie Adyard] has to establish causation in fact, which means showing that the variations were likely to or (as the case may be) did cause actual delay to the progress of the works."
"Hamblen J's analysis indicated that, if there were two concurrent causes of delay, one which was the contractor's responsibility, and one which was said to trigger the prevention principle, the principle would not in fact be triggered because the contractor could not show that the employer's conduct made it impossible for him to complete within the stipulated time. The existence of a delay for which the contractor is responsible, covering the same period of delay which was caused by an act of prevention, would mean that the employer had not prevented actual completion. Throughout his analysis, Hamblen J stressed the importance of the contractor proving delay to the actual progress of the work as a result of the alleged act of prevention."
"Accordingly, I conclude that, for the prevention principle to apply, the contractor must be able to demonstrate that the employer's acts or omissions have prevented the contractor from achieving an earlier completion date and that, 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."