Anders,

Been running along time, maybe we should start a new one about other / possibly better ways to deal with the absense of an CA’s decision on an EoT.

I think this thread is starting to get somewhat off-topic!

Or even better, read Keith’s book, the latest edition of which is now in print and available from all good construction bookstores!

Andrew,
I never said T.A.L doesn’t exist - it absolutely does!
I just don’t accept the suggestion that T.A.L. gets triggered by the inaction of the CA in assessing / awarding EOT’s.
David

www.preceptpm.co.uk

Over to you Charlie
Time at large is not some contract clause invented by Australians any thoughts?
Oscar

For anyone interested, Kieths paper can be downloaded from

http://www.scl.org.uk/

Look down centre section for NEW PAPERS

Andrew,

I’ve enjoyed the debate between you and Anders, and you’ve both made your points well. However, I must agree that a failure of the CA to exercise its EOT assesssment and award responsibilities would not in principle set Time At Large.

Assuming that the contract provides for an EOT to be granted for the complained-of delay event, the remedy for such inaction on the CA’s part would be through the particular contract’s dispute resolution clauses. Whether it be through Adjudication, Conciliation, Arbitration, etc. the (justifiably due) EOT will simply and surely be awarded. The decision maker (adjudicator/judge/etc.) would surely not determine the contract was AT Large, rather he/she would sensibly and reasonably award the EOT!

Obviously, the key words above are ’in principle’ - one can of course imagine some ’thermo-nuclear’ circumstances where the CA’s inaction has so dramatically affected the manner in which the contractor goes about progressing the works, that time might be set at large - however this would be a remote possibility IMHO.

That’s my 2 cents!

David

www.preceptpm.co.uk

Anders,

I’ve read your posting and come to the conclusion that you’ve lost the plot and are just trying to dig yourself out of a hole - sources of law as I’ve quoted are where the courts look to acertain what the law is. As I said, not my opinion, but legal fact and procedure, as simple as that.

Time at large will start at case law (precedent) as it is based in contract law and the common law interpretion. There has been more than enough case law on this subject such that I don’t think the courts will readily have to refer to textbooks to discover the answer except in exceptional circumstances.

You are right by the way that even Keiths paper is only his opinion and not actual law, although I believe it states what is generally accepted as the present positon of the law, at least as regards the causes of time at large. I would not accept without question one or two other points raised in his paper.

To quote your last posting - "Hudson leaves no doubt where it stands" - great, that’s Hudsons opinion but it is not the law of the land and as I’ve stated before, until accepted by a court it will never be the law of the land. It’s an opinion, no more, no less. Hudson may have got it spot on right, read "Cheshire, Fifoot & Furmston" or "Beale, Bishop and Furmston" on contract law and they may or may not express the same opinion - all equal in every way to Hudson in thier standing as textbooks on contract law. Read Chitty - generally considered the lawyers bible on contract law, which I would suggest actually outranks all the above and you will find refered to in cases alot more than Hudson. Any of which (and there are others I could mention) may be refered to in a case but it still doesn’t make any of thier opinions law - just opinions and until thier opinions are accepted by a court, it remains an opinion, however you look at it.

Andrew,

I really don’t see anything in the Pickavance/ MacLaughlin paper that addresses in specific terms the question of whether or not a failure of the CA to exercise his power to grant an EOT within a “reasonable” time will set time at large. Nor, in any event, and notwithstanding the very great eminence of its authorship, can it really be taken as an absolutely authoritative statement of English law that completely lays to rest any further debate on this point!!

What is at issue here is contractual interpretation. In particular, it is the interpretation that courts can be expected to give to the extension of time provisions that typically appear in building and engineering contracts, in the absence of express wording about how they should be interpreted. European directives, statutes, the Royal Prerogative, Law Commission Reports, delegated legislation and so on will not, unfortunately, help you in this regard!!

Case law does provide a starting point: indeed, the couple of UK cases have touched on this matter are: (1) Miller v. London City Council (1923) and (2) Amalgamated Building Contractors Ltd v. Waltham Holy Cross UDC (1950). However, as those cases concerned interpretations of uniquely worded (and old) contracts, and, in any event, suggest contradictory conclusions, they require a great deal of further interpretation to be of any use. Case law alone, then, does not get you to the definite answer you are looking for. That is where authorities such as Hudson are useful, both to judges and to others seeking to ascertain which way the law falls.

Hudson, furthermore, leaves no doubt about where it stands on this issue (see my previous posting). This is not just a fanciful opinion – it is clearly a commentary of unparalleled eminence that arises from a reasoned and thorough consideration of the many nuances of precedent, principle and policy, that combine together to determine precisely what the law is.

Regards

Anders.

Andres,

It is very rare that any text is allowed in consideration in an English court no matter who has written it. It is a secondary source of law at best and therefore near the bottom of the list of authorities that a court will refer to in making a decision, although it sometimes happens on rare occasions. Textbooks are most likely to be used where the law under consideration is unclear or in an area of new developmewnt of law.

Time at large is niether of these and the most likely way Hudson’s suggestion will ever be considered is if someone to take on board the suggestion and argues it in court.

For the avoidance of doubt, this is not my opinion but legal fact:

The Primary sources of law are in order of importance: (sources of law, ie actual law, as opposed to opinions)

European law (directives), Parliment (statute), Royal perogative, Delegated legislation and then Case law (precedent)

The secondary sources of law are in order of importance:

Case law from non binding court, textbooks, reports or documents eg Law Commission Report, Reports of Parlimentary procedure, custom.

So as you see, Hudson’s book is along way off even getting near persuasive except in exceptional circumstances.

Andres,

Better go and tell the judges they’re wrong then - and ask your boss who has just published a good paper on the exact same subject titled:

"Alittle of Time at Large: Proof of a reasonable time to complete in the absense of a completion date" published by Kieth Pickervance and Wendy MacLaughlin through the Construction Law Society - there he gives many reasons why time becomes at large. You can tell him it’s a good read as well.

A classic case of reading one book and one authors thoughts on the subject. If you want to read something more authoritive on contract go and get "Contract Law" by Chitty (about £300) or similar where you will read what the law is, not what someone thinks it should be. No disrespect to Hudson as they are generally very good books but in alot of such books you will find opinions as to what the law is or where they think it is going, and that does not always equate to what the actual law is at this point in time.

As your posting says "There is no reason..... there no longer seems....." - opinions but not at present fact. Maybe someone will put the case forward one day as suggested and if successful then it may become fact - but until someone does, it isn’t.

All,

Generally speaking I believe Andrew is correct although there are exceptions to every rule. LD’s cannot be levied but the contractor is will still be liable for general damages for delay - but the Employer will have to argue the case as to what date these can be charged from as the completion date is not set ie, ’at large’.

Moral of the story with EOT’s is to deal with them promptly, make a decision as to the new completion date (or sectional) so that everyone know’s where they are going, even if the parties at the time can’t agree the extent of the EOT.

Andrew,

I agree with your paragraph 1. It would be unusual (if not impossible) for a contractor to be in breach of an obligation to complete the works within a reasonable time without first being in breach of an obligation to progress the works at an acceptable rate (of the sorts you mention). The acceptable rate obligation, however, is altogether separate from the reasonable time obligation.

As to your paragraph 2, I don’t see how you can assume that an application for EOT followed by a failure to act by the CA, however, will automatically set time at large. This is so even if the contract provides a specified timeframe within which the CA must respond. In such circumstances I would argue the contractor will still be under an obligation to complete by a particular date. The date for completion will be the same as it would have been had the CA explicitly rejected the contractor’s claim for EOT. If the employer (through its agent in the CA) is in breach of its contractual obligations to give a response to the contractor’s EOT application within a certain timescale, then, if the contractor can prove the damages it has suffered from the CA’s breach, it will be entitled to them from the employer. But that will not frustrate the EOT mechanism sufficiently to set time at large.

When I talk about the contract “readjusting itself” I mean adjusting the liquidated damages payable to account for the delays to completion caused by acts of prevention – by way of an EOT mechanism. I don’t think time being set at large happens very frequently (although it may be not infrequently claimed by contractors). I think the most commonplace example would be where parties enter into a contract where the employer has (misguidedly) sought to place the time risks for its own acts of prevention onto the contractor. Any employer acts of prevention will then frustrate the EOT mechanism and so the prevention principle will kick in, thus setting time at large.

Regards

Anders Axelson
Pickavance Consulting

Anders,

You are correct in your assumptions that if the contract states no completion date then time will be ’at large’ as the only contractors obligation is to complete in a reasonable time. However the contractor will usually still be under an contractual obligation to progress the works at an "acceptable rate" - eg JCT98 "regularly and diligently" or ICE 7th "with due expedition and without delay". Failure to do so will hold the contractor in breach of contract even if no completion date exists.

Your second example is a breach of contract of the common law implied term of ’employer co-operation and non hinderance’ - a breach which will allow the contractor to recover damages. At common law, the contractors obligation to complete the works by the specified completion date is removed if the employer delays the contractor in the execution of the works. Therefore, if delayed or impeded the contractor applies for an EOT. If the CA fails to act, time is put ’at large’. Time is not put at large if the CA awards an EOT that the contractor does not agree with. The decision and completion date stands until revised or overturned at a later date. If agreement can not be reached, then what ever contractual dispute resolution procedure is stated in the contract may be used - ie ajudication, arbitration, etc.

Your example therefore does not put time ’at large’ unless the contractor applies for an EOT and the CA fails to act. If the contract "can not readjust itself", (not quite sure what you mean by this statement but I’ll assume you mean there is no EOT provision, which is very unusual) then the contractor can claim damages under common law for breach of an implied term of contract and apply for a subsequent EOT. If the contractor does not apply for an EOT then the original completion date still stands as no application has been made to alter it - therefore time is not ’at alarge’ in this instance.

To summarise, assuming a completion date is stated in the contract, time can not be put ’at large’ until someone ie the contractor, applies to alter it. Until this happens, the date stands. If a new date is set, time is no longer ’at large’, or if no EOT application is made, this date stands until revised or overturned at a later date and again time is not ’at large’. Therefore time will normally only become ’at large’ by the CA not ruling on an EOT application within a reasonable timescale.

Hi all,
Daniel is correct in the options available but the bottom line is that time will normally become ’at large’ due to the CA not making an assessment and decision on an EOT claim. The contract in this case has no defined completion date and therefore the contractor only has the obligation to complete in a reasonable time. As there is no definitive completion date the Employer can not apply liquidated damages as there is no completion date to calculate them from.
Even if the EOT can not be accurately forecast the CA can do an interim assessment to re-establish the completion date. One word of warning, once given it is very difficult to take back or reduce the EOT given. The interim assessment as the name suggests, can be reviewed and extended if required at a later date. An assessment and decision should be made both so that the contractor knows what date he is working to and the Employers right to liquidated damages is not lost.

I read with a lot of interest what is said about the "time at large". I have done a bit of research and also tried to get a bit of advise on this subject. But I am still wondering. Everytime, it is mentionned that time may become at large due to a failure (access, contract administration...) of the Employer.
Can the Employer attempt to claim that the time has become at large because of the Contractor? If so, what could be the advantages/consequences for the Employer to do so? and for the Contractor?