BuildLaw Issue 25 September 2016 | Page 29

contract period becoming ‘at large’ and relieving the contractor from a liability to pay liquidated damages up to the extended contract completion date.

What needs to be proved?

In order to determine whether an entitlement to an extension of time exists, it is necessary to establish that:

i. the cause of the delay was excusable, under the terms of the contract; and also,

ii. as a consequence, there was a delay to the date for completion.

1. Identifying an excusable event under the contract provisions

In light of the judicial decision in Peak Construction v McKinney Foundations, express provision is now included within standard forms of construction contracts to grant time relief for delays caused by the employer (or its representatives). Moreover, today's standard forms of contract go further and allow for the granting of an extension of time for a range of specified events.

Each standard form of construction contract deals with this risk allocation/sharing differently but these excusable events (referred to as relevant events under the JCT and compensation events under the NEC) provide the contractor with an entitlement to extension of time to complete its works. A list of excusable events is set out at clause 2.29 of the JCT standard building contract, clause 60 of the NEC3, clause 8.4 of the FIDIC red book and clause 18.3 of the PPC2000.
2. Demonstrating a delay to the date for completion

In the absence of express terms to the contrary, the occurrence of an excusable event alone is insufficient to give rise to an entitlement to an extension of time. Instead, in order to successfully demonstrate such entitlement, the standard forms of construction contract (for example clause 2.28.2 of the JCT Standard Form 2011 edition, 63.3 of the NEC3, clause 8.4 of the FIDIC Red Book 1999 edition and clause 18.3 of the PPC2000) require the contractor to demonstrate that the excusable event is likely to or indeed has caused a delay to progress of the works, and consequently has impacted upon the completion date.

The burden of proof in relation to demonstrating the effect of delay requires the consideration of the following two key principles.

Critical delay-differentiating between a delay to progress and a delay to completion

For an entitlement to an extension of time to arise a delay must be critical to completion.
One accepted and approved definition5 as to what constitutes the critical path is that it is the longest logic-linked path through a programme to the completion date. Accordingly, a delay to any of the activities on the critical path would lead to a delay to the completion date.

Where (total) float6 exists within the overall programme against the completion date this would need to be eliminated before any critical delay is experienced. Further, where an excusable event affects non-critical activities,