International Construction Law Review
CALCULATION OF A REASONABLE TIME TO COMPLETE WHEN TIME IS AT LARGE1
KEITH PICKAVANCE2
LL B (Hons), Dip Arch, RIBA, Dip IC Arb, FAE, FCIOB
Introduction
Rarely does one come across a contractor’s claim without finding in it somewhere the allegation that “time is at large”, that the employer is not entitled to any liquidated damages and the contractor is thus entitled to a reasonable time to complete. The need to be able to demonstrate what is a reasonable time to complete can also arise when, although there are no liquidated damages stipulated, a fixed completion date has passed without a new completion date being substituted and the employer wishes to bring the contract to an end.
Generally, provided that there is a contract completion date, a power under the contract to extend time, and the contract administrator properly exercises that power, a new date for completion can be enforced. Where there is a power to extend the time for performance, this is usually calculated by adding to the initial date for completion the additional time required for the effect of the employer’s time risk event.3
However, if, for reasons within the employer’s control, the contractor is prevented from completing by the date for completion and there is no right to extend time for performance (or if there is, time is not properly extended) the employer can no longer insist upon the completion date. Time is then said to be “at large” as a result of the effect of what is known as the “prevention principle”. This has been described as being based upon:
- (1) a rule of law: “some broad notion of justice as that a man should not be allowed to recover damages for what he himself has caused”4 ; or
- (2) an implied term: “as a matter of fairness or policy”.5
The expression “time at large” is thus usually used to indicate that the claimant believes that, for one reason or another, there is no enforceable date for completion of the works. Hence, because there is then no date
1 Based on the paper “A Little of Time at Large” given to the Society of Construction Law, London, on 4 October 2005 with Wendy MacLaughlin and also in Hong Kong on 15 November 2005.
2 Keith Pickavance is a director of Pickavance Consulting Ltd, London, Senior Vice-President of Hill International, and author of Delay and Disruption in Construction Contracts
(LLP Informa, 3rd ed., 2005).
3 Balfour Beatty Buildings Ltd
v. Chestermount Properties Ltd
(1993) 62 BLR 1 (QB Comm Ct), Colman J, at 29.
4 SMK Cabinets
v. Hili Modern Electrics Pty Ltd
[1984] VR 391 at 395, 1 Const LJ 159 (Sup Ct Vict).
5 Ibid
.
[2006
The International Construction Law Review
168