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Time at Large
March 2002

Key points:
The date for completion of construction works may cease to be enforceable if the
employer delays the contractor - time for completion is said to be "at large"
If time is at large, then no liquidated damages can be deducted
However, application of the principle of "time at large" can be avoided by drafting
the extension of time clause to allow an extension where the Employer causes
delay
It is common to see in contractors' claims a contention that "time is at large". What
does this mean and when does it apply?
It means that the contract date for completion is no longer applicable. If the contract
completion date does not apply, then there is no specific date by which the contractor
has to complete - time is "at large". More importantly, from the contractor's
perspective, if there is no fixed completion date, there can be no liquidated damages,
because there is no date from which the payment of liquidated damages can be
triggered.
When does it apply? The time for completion of works can become "at large" when
the contractor has been hindered or prevented by the employer from completing the
works in accordance with the original contract. This results from a well-established
principle of law that "no person can take advantage of the non-fulfilment of a
condition the performance of which has been hindered by himself." Another name for
this is the "prevention principle".
The prevention principle has been developing since the last century. It stems from a
dislike by English courts for liquidated damages provisions - they considered them
oppressive. The extension of time clause and the liquidated damages clause are
usually closely linked. Because of the dislike of liquidated damages, extension of time
clauses came to be interpreted with extreme strictness.
The reason "time at large" is attractive to contractors is that, applied strictly, the
principle means that if any delay at all can be attributed to the Employer, then the
liquidated damages provision ceases to be effective. Thus, if a project finishes late,
and the contractor has been responsible for, say, 50 days delay and the Employer
for, say, five days, no LD's will be payable at all.
Time being "at large" does not mean that the Contractor has no obligation to
complete the work. He has to complete in a "reasonable time". What is reasonable
will depend on all the circumstances at the time. Even if the Employer is not entitled
to liquidated damages he can still recover general damages, if he can prove that he
has suffered a loss as a result of the contractor's delay. However, the recoverable
general damages cannot be higher than the liquidated damages were.

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The prevention principle can only apply where the contract does not contain a proper
mechanism for allowing the Employer (or Architect/Engineer) to grant an extension of
time for delay caused by the Employer or anyone for whom he is responsible (or
there is a mechanism and the Architect/Engineer does not use it). The absence of
such a mechanism is still surprisingly common. It was only in September 1999 that
the ICE changed the extension of time clause in the ICE conditions to add "any delay
impediment prevention or default by the Employer" to the list of matters that will
entitle the contractor to an extension of time. The JCT contracts contain a list of
different "Relevant Events" justifying an extension of time, but none of them is broad
enough to cover all possible causes of delay by the Employer.
The extension of time clause must also contain wording permitting the Employer or
his Architect/Engineer to grant an extension of time even where the Contractor has
not asked for an extension of time. This prevents the contractor from keeping time "at
large" by simply not asking for an extension.
General sweep-up wording in an extension of time clause (such as "or other
unavoidable circumstances") has been held by the English courts not to cover
employer defaults. In Peak v McKinney (1970), it was held that to entitle the employer
to grant extra time for his own defaults, the extension of time clause must provide,
expressly or by necessary inference, for an extension on account such a fault of
breach on the part of the employer. This decision has been criticised as being
unnecessarily restrictive.
Courts and arbitrators dislike "time at large". Experience shows that they will not
readily allow a contractor to escape liquidated damages where there has been minor
delay by the Employer. An example of this is Balfour Beatty v Chestermount (1993).
The Contractor was in delay. The Employer ordered extras after the completion date.
The Contractor argued that this exonerated him from all delay up to that point. The
court refused to apply the prevention principle to its logical extreme in this situation
and said there should be an apportioning of the delay.
In conclusion, "time at large" is a well-recognised concept, stemming from an
outdated dislike of liquidated damages provisions. Its application can be avoided by
proper drafting of the extension of time clause, to allow an extension for employer
defaults. Even when the principle does come into play, it is unlikely to prove a
complete panacea for contractors trying to recover or avoid liquidated damages.
Jeremy Winter
March 2002
Jeremy Winter can be contacted by email at jeremy.winter@bakernet.com.