of the exceptionally inclement weather (a relevant event), but also because the contractor has a shortage of labour (not a relevant event), and if the failure to work during that week is likely to delay the works beyond the completion date by one week, then if he considers it fair and reasonable to do so, the architect is required to grant an extension of time for one week. He cannot refuse to do so on the grounds that the delay would have occurred in any event by reason of the shortage of labour.
This approach has been followed in other places and is also supported by the Delay and Disruption Protocol (published by the Society of Construction Law (UK) on 16 October 2002 to provide guidance to all parties to the Construction process when dealing with time/delay matters) which states at Clause 1.4.1,
Where contractor delay to completion occurs concurrently with employer delay to completion the contractor’s concurrent delay should not reduce any EOT due.
In Walter Lilly & Company Limited v MacKay and DMW Developments Limited [2012] EWHC 1773 (TCC), a decision of Mr Justice Akenhead, the UK Technology and Construction Court had to consider this issue, amongst others.
In paragraphs 362 to 372 inclusive, the Court considered a number of decisions and firmly concluded that the Malmaison approach was correct.
On this topic Akenhead J concluded
In any event, I am clearly of the view that, where there is an extension of time clause such as that agreed upon in this case and where delay is caused by two or more effective causes, one of which entitles the Contractor to an extension of time as being a Relevant Event, the Contractor is entitled to a full extension of time.
However, as will be seen later under the heading Prolongation Costs, it does not automatically follow that the Contractor will receive the costs of the full period of the extension.
Care is required when referring to these decisions and other statements because in some cases some of the reasoning is dependent upon whether or not the contract contains a provision for liquidated damages.
The view of most commentators is that the Malmaison approach is to be preferred.
I would also mention in passing that as long ago as 1966, a Malmaison type of approach was actually adopted in Canada in the decision Perini Pacific Limited v Greater Vancouver Sewage & District (1966) 57 DLR (2d) 307.
The court decided that where there is a provision for liquidated damages and the Contractor is delayed partly for reasons which are the fault of the Principal and partly for reasons which are the fault of the Contractor then time for completion is set at large, the Contractor becomes obliged to complete within a reasonable time, and the Contractor has no liability for liquidated damages.
For some reason, which I have never understood, this Perini Pacific decision has rarely been mentioned.
Time at Large
The relevant line of authorities commences with Holme v Guppy (1838) 150 E.R. 1195, where it was held,
Where an owner impedes a contractor from meeting the completion date, the completion date is suspended, time becomes at large and is replaced with an obligation to complete within a reasonable time.
More recently, this has been known as the prevention principle.