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The prevention principle and delay

North Midland Building Limited v Cyden Homes Limited [2017] EWHC 2414 (TCC)

In this case Mr Justice Fraser, sitting in the High Court, provided an overview of the relevant case law in relation to the ‘doctrine of prevention’ as well as addressing issues relating to contractual interpretation in building contracts.

The case involved the Claimant being contracted to construct a substantial house in Lincolnshire. Substantial delays occurred and the Claimant applied to the Defendant for an extension of time pursuant to the clauses contained in the design and build contract. The standard JCT Design and Building contract had been amended by the parties and amended the clause relating to relevant events and time extensions. This amendment included a clause stating “…any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account.”

The Claimant sought a declaration that time was at large in a situation where a ‘relevant event’ causing delay was concurrent with a delay caused by the Claimant. To support this submission the Claimant sought to rely upon the doctrine of prevention which was considered in Multiplex Construction (UK) Limited v Honeywell Control Systems Limited [2007] BLR 195. The Claimant asserted that Multiplex should be applied to the instant case and by that application time would be at large. In making this point the Claimant submitted that there was no point of contractual construction that needed to be addressed in relation to the clause above.

Fraser J found the submissions in relation to Multiplex entirely unconvincing and also found that the doctrine of prevention had no application at all in the current case and dealt with something completely different.

Thus the common law understanding that parties enjoy wide ranging freedom of contract was followed and the Claimant held to the terms of the contract. 

William Skjøtt / 14th Dec 2017


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