Extension of time – when should it run from?

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Carillion Construction v Emcor Engineering Services [2017] BLR 204 Court of Appeal

Facts

Emcor was Carillion’s subcontractor on DOM/2, 1981 edition, for the building services during the construction of the new court building for the TCC. Carillion fell into delay. It settled its claims and counter-claims with the employer and sued Emcor in turn. Emcor counterclaimed for an extension of time, which it submitted should be added contiguously to the end of the period allowed for completion of the subcontract works.

Carillion argued that the extension of time should apply to a later date and period, (which would affect the respective liabilities of the parties).

TCC Held

The natural meaning of clause 11.3 of the DOM/2 subcontract conditions was that an extension of time granted to the subcontractor for delay should be added to the end of the contract period rather than creating a separate period of justified delay with its own start and end date. This was the natural meaning of the words. Carillon appealed.

Court of Appeal Held

Recorder Nerys Jefford QC in the TCC was correct, the revised or further revised period should be added contiguously to the end of the current period within which the subcontract works were to be completed.

Comment

1. This principle has been settled at least since 1993 (Balfour Beatty v Chestermount) but from time to time aggrieved parties go on trying to persuade the Court to change its mind.

2. There is a good logical argument for identifying time periods by reference to when the actual delay is occurring; but it would make the administration of the contract and the calculation of loss much more complicated; and the courts consistently take a practical approach to this issue.

For more specialist legal advice call Keith Bishop, Head of Construction & Engineering, on
0191 211 7983 or email [email protected].