David - Chappell - Building - Contract - Claims 36
David - Chappell - Building - Contract - Claims 36
2 Time at large 23
no delaying event may be a difficult task. In J & J Fee Ltd v The Express Lift Co Ltd,
where there had been correspondence about the date for completion, the court held
that there was an agreed date, but ventured the opinion that in any event a reasonable
date for completion would be implied as not later than the date which had consist-
ently been put forward by Express Lift.11
The question of time being ‘at large’ and the relationship between the extension of
time clause and liquidated damages provisions in JCT contracts has been stated in
this way:
‘1. The general rule is that the main contractor is bound to complete the work
by the date for completion stated in the contract. If he fails to do so, he will be
liable for liquidated damages to the employer.
2. That is subject to the exception that the employer is not entitled to liquidated
damages if by his acts or omissions he has prevented the main contractor from
completing his work by the completion date – see for example Holme v Guppy
(1838) 2 M & W 387, and Wells v Army and Navy Co-operative Society (1902) 86
LT 764.
3. These general rules may be amended by the express terms of the contract.
4. In this case [which involved a contract in terms identical to JCT 63] the express
terms of clause 23 of the contract do affect the general rule . . . ’.12
In practice, very few building contracts are without a clause enabling the employer
or the employer’s agent to fix a new completion date after the employer has caused
delay to the contractor’s progress. All standard forms have clauses permitting the
extension of time although not all of the terms are entirely satisfactory. Even where
a building contract contains terms providing for extension of the contract period,
time may yet become at large either because the terms do not properly provide for
the delaying event or, because the architect has not correctly operated the terms. The
latter is sadly all too common.
The JCT series of contracts (other than MW and MWD) favour a list of events giving
grounds for extension of time. Because the architect’s power to give an extension of
time is circumscribed by the listed events, there is a danger that the employer may
delay the Works in a way which does not fall under one of the events. In such a case,
time would be at large. For example, the 1980 edition of the JCT Standard Form did
not include power for the architect to extend time for the employer’s failure to give
the contractor possession of the site on the due date. Therefore, if an employer failed
11
(1993) 34 Con LR 147.
12
Percy Bilton v Greater London Council (1982) 20 BLR 1 at 13 per Lord Fraser of Tullybelton, delivering the
unanimous decision of the House of Lords.