Time at Large

:
In commercial contracts the parties usually intend the works to be completed by
an agreed date. In many contracts the date for completion will be stated as an e
xpress term. The term Time at Large is not a legal term, but describes the situa
tion where there is no identified date for completion, either by absence from th
e contract terms or arising from events and the operation of law. Time is said t
o be at large because the time or date for completion is not fixed before carryi
ng out the work, but determined after the work has been completed.
The term Time at Large is usually used in construction contracts in the situatio
n where liquidated damages are an issue. If time is at large then it is argued l
iquidated damages cannot be applied, because there is no date fixed from which t
he liquidated damages can be calculated. In some situations the date for complet
ion may be relevant to termination and the issue whether or not there has been a
breach of contract by failure to complete.
Time is made at large in four situations.
1.No time or date is fixed by the terms of the contract by which performance mus
t take place or be completed.
2.The time for performance has been fixed under the contract, but has ceased to
apply either by agreement or by an act of prevention (which includes instructed
additional work) or breach of contract by the Employer with no corresponding ent
itlement to extension of time.
3.The Employer has waived the obligation to complete by the specified time or da
te. An alternative situation is that the Employer is faced with a breach of cont
ract by the contractor which would entitle to Employer to terminate the employme
nt of the contractor and/or to bring to an end the primary obligations of the pa
rties to perform, but instead elects to continue with the performance of the con
tract.
4.The Employer has interfered in the certification process to prevent proper adm
inistration of the contract.
Time is of extreme importance in the construction industry. The contractor has a
n obligation to complete the works within the time for completion. On the other
hand, the employer should not impede the contractor in performing its obligation
s under the contract. If the contractor is prevented from completing a project b
y the date for completion for a reason for which the employer is responsible, an
d there is no right to extend time for completion or it is not properly extended
, time becomes at large. Thus, the contractor is not obliged to complete the wor
ks within the original time for completion and the employer loses his entitlemen
t to deduct liquidated damages for delay. This paper used a two-step research me
thodology where the time at large principle is explained within the context of t
he common law legal system and is consequently applied to various standard forms
of contract. The list includes the Joint Contracts Tribunal (JCT) Design and Bu
ild Contract of 2011, the World Bank Conditions of Contract (WB Contract) includ
ed in the Standard Bidding Documents for Procurement of Works (SBDW), the Federa
tion of Consulting Engineers (FIDIC) Conditions of Contract for Construction iss
ued in 1999, and the American Institute of Architects (AIA) Conditions of contra
ct for Construction (A201) of 2007. To this end, the authors highlighted the pro
visions related to delays and extension of time.
Relevant Cases :
The main question when the application of liquidated damages is at issue is ther
efore whether or not the contract makes provision for extension of time for acts
of prevention by the Employer. Relevant decided cases are:
1.Holme v Guppy (1838) 3 M&W 387
2.Wells v Army v Navy Co-operative Society Ltd [1902]
3.Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd [1970] 1 BLR 114
4.Percy Bilton Ltd v Greater London Council [1982] 20 BLR 1

They keep alive the contractors obligation to complete by a specified date and preserve the Employers right to deduct liquidated damages for breach of that obligation. 8s. Other causes of delay established were certain defaults on the part the builder and also certain defaults on the part of other contractors engaged by the employer. the builder agreed to carry out carpentry and joinery work forming part of a new brewery in Liverpool for 1. The contract specified a completion date of 31st August 1836 and provided for liquidated dam ages at the rate of 40 per week. The Employer had failed to give possession of the site for four weeks foll owing execution of the contract. There are clear authorities that if the party be prevented by the r efusal of the other contracting party from completing the contract within the ti me limited he is not liable in law for the default . no doubt. extension of time clauses are carefully drafte d to entitle the contractor to extension of the period of completion for any act s of prevention by the Employer.5.Inserco Ltd v Honeywell Control Systems [1996] 9. t hat the plaintiffs were excused from performing the agreement contained in the o riginal contract and there is nothing to show that they entered into a new contr act by which to perform the work in four months and a half ending at a later per iod.Rapid Building Group Ltd v Ealing Family Housing Association [1985] 29 BLR 5 7. In Dodd v Churton [1897] 1 QB 566 the contractor Dodd agreed to carry out constr uction work for the Employer Churton for 664. In order to protect the Employers right to liquidated damages. Pursuant to that clause the architect ordered additi onal works to the value of 22. part of the original Contract that the building owner should h . In Holme v Guppy (1838) 3 M&W 387. The plaintiffs were therefore left at large. Then it appears that they were disabled from by the act of the defendants from the performance of th at contract. The extension of time clauses are for the benef it of the Employer. which caused completion to be delayed bey ond 1st June 1892.. Clause 4 of the Contract empowered the architect to order additional works or different works by way of variation.700. It is clear from the terms of the agreement that the plaintif fs undertake that they will complete the work in a given four months and a half and the particular time is extremely material because they probably would not ha ve entered into the contract unless they had had those four months and a half wi thin which they could work a greater number of hours a day. The Employer Guppy withheld payment following d elay..Bramall & Ogden Ltd v Sheffield City Council [1985] 29 BLR 73 6. Colman J awarded 200 to the builder which w as challenged by the Employer but upheld by the Court of Exchequer . Consequently they are not to f orfeit anything for the delay. Extension of Time Clauses need to provide a contractual remedy for the expected range of acts of prevention by the Employer.Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2) [2007] EWHC 447 (TCC) 4. It is clear. In the Court of Appeal Lord E sher MR said: It was. Dodd sued for the balance of the contract price and Churton counterclaimed for 50 as liquidated damages for late completion. The Contract specified a completio n date of 1st June 1892 with liquidated damages of 2 per week for delay.Parke B: On looking into the facts of the case we think no deduction ought to be allowed to the defendants. 8d. In the event the works were not completed until 5th December 1892.Davy Offshore Ltd v Emerald Field Contracting Ltd [1992] 55 BLR 1 8. Acts of Prevention In modern construction contracts. therefore.

If the contractor failed to specify a date of delivery. and if he did give a n order for it. that the fact that the builder had contracted to do any extra work that might be ord ered prevented the application of the rule which I have mentioned. The reason for that rule is that otherwise a most unreaso nable burden would be imposed upon the Contractor. beginning with Holme v Guppy.v. It was held that the words any special circumstances whatsoever did not include the Employers breach of contract in making late payments on interim certificates . The act of prevention may be an omission or failure by the Employer or acts of h indrance or interference in breach of contract.it may be quite legitimate conduct. Whether or not the contractor has a claim against subcontractors or suppliers for breach of contract is not relevant to the issue of control.v. to the e ffect that. but otherwise would not.ave a right to call upon the builder to do that extra work. for instance. Acts of prevention has a wide meaning. It was held that the context of the phrase did not restrict its broad meaning. The Secretary of State for India. if the building owner has ordered extra work beyond that specified b y the original contract which has necessarily the time requisite for finishing t he work. or the order of extra work.w hen there is a stipulation for work to be done in a limited time.North West M in Dodd v Churton [18 of prevention put tim affirmed by the House . the builder could not refuse to do it. then the one whose conduct caused the trouble can no lon ger insist upon strict adherence to the time stated. of Lords: Ltd . a well recognised rule ha s been established in cases of this kind. It is well settled that in building contracts . In Wells v Army v Navy Co-operative Society Ltd [1902] it was held that the word s other causes beyond the contractors control did not include for breaches of co ntract or the failure of the Employer to give on time possession of the site and information. The general basis of the approach is a rule of construction that there is a rebu ttable presumption that a party would not be entitled to take advantage of its o wn wrong to the detriment of the other party Alghussein Establishment v Eton Col lege [1988] 1 WLR 587.Taggart [1979]. In Trollope & Colls etropolitan Regional Hospital Board [1973] HL the decision 97] was affirmed and it was held that in that case the act e at large. then the delay would be hi s responsibility. This was also followed in Perini Pacific Ltd . In the Court of Appeal Lord Denning MR stated. he is thereby disentitled to claim the penalties for non-completion pro vided by the contract.and in other contracts too . But it was he ld that that was not so. Then this further complicatio n arose. if one party b y his conduct . He cannot claim any penalti es or liquidated damages for non-completion in that time. in Westwood v. . It w as a question of fact whether subcontractors and suppliers were within the contr actors control. It was urged in suc h cases.renders it impossible or impracticable for the other party to do his work with in the stipulated time. Contracts were entered into by which the builder agreed to do any extra work which the building owner or his architect might order. The term beyond the contractors control was also considered in relation to a pay ment provision in Scott Lithgow Ltd v Secretary of State for Defence [1989]. such as ordering extra work . The suppliers failure to deliver on t ime in breach of contract was not a matter within the contractors control. as. The extension of time clause must be wide enough to deal with all risk events wh ose consequences on the completion date are intended under the contract to be at the risk of the Employees.

but the Court gave useful observations on the head o f claim of liquidated damages paid to the Corporation by Peak. The deputy Official Referee found that there was no unreasonable delay by the Co rporation and McKinney appealed to the Court of Appeal on this issue. It was obvious that the delay caused by McKinneys breach of its subcontract wou ld cause some delay to completion of the main contract works. In each case Peak was the main contractor for the Corporation. the clause does not bite. Subsequently a very grave fault was found in one of the piles that for all pr actical purposes made it useless.In Peak Construction Ltd v McKinney Foundations (Ltd) [1970] 1 BLR 114 the works involved erection of three multi-story blocks of flats for the Liverpool Corpor ation. Amalgamated Building Contractors v Wa ltham Urban District Council. It was held that liquidated damages clause and extension of time clause were clo . The employer could not insist on compliance with a conditio n if it was partly its own fault that it could not be fulfilled. McKinney F oundations was the subcontractor nominated to design and construct the foundatio n piles for all three blocks of flats. Applying these tests the decision was not allowed to stand. The matter was remitted to the Official Referee to consider the appropria te apportionment of delay between McKinney and the Corporation. This disposed of the issue. The Court of Appeal recognized that it should only interfere with a finding of fact. and Holme v Guppy. The form of contract was an amended JCT 1 963 Form which was severely criticized as one-sided and with obscurely and inept ly drafted clauses. McKinney designed the piles and completed construction of the piles and left sit e.if the primary facts not only did not justify the findings but led irresistibl y to the opposite inference or conclusion. If the failure to complete on time is due to the fault of both the employer and the contractor. Some of the delay flowed from the Corporations inordinate dilator iness. in the ordinary course. I c annot see how. follo wing Edwards v Bairstow.upon a view of the facts which could not reasonably be entertained or 3. for it enables him to recover a fixed sum as compensation for delay instead of facing the difficulty and expense of proving the actual damage which the dela y may have caused him. The extension of time clause did not allow an extension for the delay caused by the Corporation. Salmon LJ said: The liquidated damages clause contemplates a failure to complete on time due to the fault of the contractor.without any evidence or 2. The main contract li quidated damages were over 700 per week. Peak commenced an action against McKinney claiming that the whole of the 58 week s delay had been caused by McKinneys breach of subcontract. if it was satisfied that the deputy official referee ha d acted 1. In that case the whole liquidated damages p rovisions fell away. The whole of the 58 weeks delay did not flow naturally and in the ordinary course of things from McK inneys breach. in my view. There was consider able delay in investigations and then finding a solution that was acceptable to the Corporation. This gave rise to serious concerns that other piles might be defective with potentially serious consequences if not rectified. the employer can insist on compliance wit h a condition if it is partly his own fault that it cannot be fulfilled: Wells v Army & Navy Co-operative Society Limited. It was held that Peak was not entitled to claim as damages the amount paid to the Corporation as liquidated damages. It is inserted by the employer for his own protecti on.

and the contractor wo uld then be liable to pay liquidated damages for delay as from the extended comp letion date. to recover such damages as he can prove flow from the contractor's breach. because at the north east corner of the site there were squat ting a man and his wife and his dog. If the employer wishes to recov er liquidated damages for failure by the contractors to complete on time in spit e of the fact that some of the delay is due to the employers' own fault or breac h of contract. Following eviction proceed ings Rapid Building were given possession but late. The next issue was whether Ealing having failed on its claim for liquidated dama ges could claim for damages in the normal way for any delay caused by Rapid Buil ding. The purpose is to save the employer from having to prove the actual damage that he has suffered as a result of the contractors culpable delay. that is to sa y. In McAlpine Humberoak v McDermott International (1) [1992] 58 BLR 1 the Court of .sely linked. so that the liquidated damages provisions fell aw ay. In this case the extension of time clause did not allow Rapid Building to be granted an extensio n of time for late possession. then the d elay due to the fault of the contractor is disentangled from that due to the fau lt of the employer and a date is fixed from which the liquidated damages can be calculated. I am unable to spell any such provision out of clause 23 of the contract in the present case. In Rapid Building Group Ltd . This would mean that the parties had intended that the employer could recover liquidated damages notwithstanding that he was partly to blame for the failure to achieve the completion date. and if the appropriate extension is certified by the architect. the position would be different. The judge at first instance rejected Ealings counterclaim for liquidated damages on the basis of the decision in Peak Construction Ltd v McKinney Foundations (L td) [1970] 1 BLR 114. If the clau se provides for extension of the contractor's time in the circumstances which ha ppen. The liquidated damages and extension of time clauses in printed forms of contrac t must be construed strictly contra proferentem. is left to his ordinary remedy. in the circumstances postulated.Ealing Family Housing Association Ltd [1984] 2 9 BLR 5 the works were 101 dwellings in five blocks in London under the JCT 63 F orm. Ealing were unable to give Rapid Building possession of the site on the dat e in the contract.v . It was held that a party must elect whether to claim liquidated or unliqui dated damages. but where the claim for liquidated damages has been lost he canno t be precluded from pursuing the counterclaim for unliquidated damages. The Court of Appeal held that the decision was binding upo n it and supported the decision of the judge at first instance. Salm on LJ said: I consider that unless the contract expresses a contrary intention. On a further issue. it was not accepted by Ealing that there was a ceiling to it s claim for unliquidated damages equal to the amount of liquidated damages claim ed. for an extension on account of such fault or breach on the part of the employer. then the extension of time clause should provide. the employer . The Court did not find it necessary to decide this point. No doubt if the extension of time clause provided for a postponement of the comple tion date on account of delay caused by some breach or fault on the part of the employer. expressly or by necessary inference. In such a case the architect would extend the date for completion. They were squatting in an old Austin Cambri dge car with various packing cases behind a stockade. The problem is solved by a suitable worded extension of time clause.

Clause 4.Honeywells failure to comply with the conditions precedent to extension of tim e meant that the prevention principle prevented Multiplex levying liquidated dam ages.10 to entitlement to extension of time for delay caused by Clause 4. In Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2) [2007 ] EWHC 447 (TCC) the issue to be to determined was whether time had been set at large under one of the sub-contracts for the Wembley Stadium project. 3. In Inserco Ltd v Honeywell Control Systems [1996]. Mr Justice Jackson reaffirmed that the essence of the prevention principle is th at the promisee cannot insist upon the performance of an obligation which he has prevented the promisor from performing. 2 which did not involve proposals and responses and included variations. This was referred to as the Gaymark Point. T his was referred to as the Operational Point. There was no provision in the contract for extending the completion date and ti me was held to be at large. As is also common the extension of time clause was drafted in wide terms and i ncluded Multiplex variation instructions under Clause 4. In Davy Offshore Ltd v Emerald Field Contracting Ltd [1992] 55 BLR 1 Emerald emp loyed Davy to carry out design and provide certain facilities including a semi-s ubmersible drilling rig and a floating storage unit together with the provision of subsea work. Multiplex had so operated the contract to deprive Honeywell of the right to extension of time.Appeal affirmed that the ratio decidendi of Peak Construction Ltd v McKinney Fo undations (Ltd) [1970] 1 BLR 114 was that an employer is not entitled to rely on a liquidated damages clause where the reason for late completion was an act of hindrance or prevention by the employer. In common with many standard forms the sub-contract list ed Relevant Events which entitled Honeywell to extension of time at Clause 11. postponement instruct ions under Clause 46 and delay caused by any act of prevention or default by Mul tiplex.There was no provision for extension of time under Clause 11 of the Sub-Contra ct for variations instructed under Clause 4. Under the main contract Multiplex agreed to design and construct the New National Stadium at Wembley and subcontracted to Honeywell the the design.6. The Construction Point required examination of the width and extent of the exten sion of time Clause 11. 2. .2 instructions.10 . at least in the absence of a suitable e xtension of time clause. Inserco contracted to complet e all work by 1 April 1991. The contract terms were extensive and complex and His Honour Jud ge Thayne Forbes QC was asked an extensive list of preliminary questions. This was referred to as the Const ruction Point. There w as no express reference at Clause 11.6 provided a procedure for issuing Variations involving proposa ls and responses. Due to additional and revised work. and lack of prop er access and information Inserco was prevented from completing by 1 April 1991. It was held that under the contract time only became at large when the failure to comp lete on time was due to an act or omission by Emerald. By abandonin g the extension of time claim under a main contract settlement. For one of the issues it was common ground that time was at large which it was held meant that Davy was o bliged to completed the work within a reasonable time making allowance for the p eriod of delay attributable to Emeralds default. supply and installatio n of various electronic systems for communication and control of the building. In this case Multiplex had issued instructions under Clause 4. Clause 46 allowed Multiplex to postpone any design or construction work.2. Honeywell argued that time was at large on three different basis 1.Either the mechanism for operation of the extension of time mechanism had brok en down or Multiplex had failed to properly operate the provisions.

Waiver or Election Time may become at large if the original obligation to complete is waived. he would not accept it. The fact that the direction was permitted by the contract did not prevent it being an act of prevention. if those actions cause delay be yond the contractual completion date. The issue of the programmes were variations. After waiving the initial stipulation as to time.Actions by the employer which are perfectly legitimate under a construction co ntract may still be characterised as prevention. but new dates agreed. one consequence of the prevention principle is that the employer cannot hold the contractor to a specified completion date. 5. In this case Multiplex had issued directions under Clause 4.7.2 direction might also be characterised as a postponement instruction. The proposed completion dat es were passed without completion. Jackson J also considered that a Clause 4. but were simply directions on matters of doubt. applying the above propositions to the fact s of the case. Instead.In the field of construction law.10. In Ch arles Rickards Ltd v Oppenheim [1950]. Jackson J recognised on the facts of the instant case that not all instructions under Clause 4. Eventually.Acts of prevention by an employer do not set time at large. The car was not delivered within the time specified and was not completed until some months later when Oppenheim refused to accept it. That therefore disposed of the Constructioin Point. It is in order to avoid the operation of the prevention principle that many construction contracts and sub-contracts include provisions for extension of ti me. then the variati on prevented Honeywell completing and was therefore an act of prevention under t he extension of time clause 11. if the employer has by act or omission prevented the contractor from completing by that date.Employers D elay and the Right to Liquidated Damages. 3. The Operational Point is examined below under the heading Failure of Contractual Machinery. time becomes at large and the obligation to complete by the specified date is replaced by an implied obligation to complete within a reason able time.In so far as the extension of time clause is ambiguous. if the contract pr ovides for extension of time in respect of those events. If a direction under Clau se 4.2 was a variation which led to completion at a later date. it can be seen that extension of time clauses exist for the protection of both parties to a construction contract or sub-contract. Jackson J held that he issue of the programme s were characterised as acts of prevention. Thus. The Gaymark Point is examined in the Article Delay and Disruption . it should be construed in favour of the contractor. fo ur weeks away. The same principle applies as between main contractor and sub-contrac tor.10 and therefore that on this basis time was not at large. The Court of Appeal held that he was justified in doing so. Oppenheim was entitled to give reaso . Jackson J reviewed the authorities on the prevention principle and identified th e following three propositions: 1.2 in the form of rev ised programmes with required later completion dates than specified in the subco ntract. 2.2 of the subcontract would have an effect on the duration of the works. Oppenheim gave writt en notice to Rickards stating that unless he received the car by a firm date. As to the third proposition Jackson J cautioned that if an extension of time cla use was ambiguous the construction should lean in favour of a construction which permitted the contractor to recover an appropriate extension of time for events causing delay. or alternatively as postponement ins tructions under clause 46 for the purposes of clause 11. a Rolls Royce motor car was not built by the agreed delivery date.

mapped to them the principle of time at large to conclude when time could become at large under the subject contracts. and disputes assoc iated with and/or resulting from the time at large principle. time be comes `at large'. if it was not previously so. It is not clear whether the E mployer can make time of the essence. This research would help employers and co ntractors. The Employer will have lost his right to liquidated damages so that if the contractor fails to complete by the revised agreed date the Employe r will be left with the remedy of general damages.nable notice making time of the essence again. to avoid conflicts. If. thus making time of the essence again Taylo r v Brown [1839]. entering into projects using any of these standard forms of contract within a common law legal system. because of waiver. This principle applies to construction contracts. This should suppor t effective and efficient contract administration of construction projects. claims. the Employer can give the contractor reasonable notice to comp lete within a fixed reasonable time. . and on the facts the notice was r easonable.