Prospective vs retrospective delay analysis: new TCC COmmentary -CONT.Conclusions and Implication The court’s decision that a retrospective approach was required in this case would appear to follow the established principles noted above as to the assessment of damages for breach of contract. More interesting, however, are the court’s comments that: 1. Prospective and retrospective approaches do not necessarily produce the same answer. This contrasts with the passage from Walter Lilly referred to above but is a more realistic assessment of the position brought out by these analyses. 2. A prospective approach should be used for the assessment of extensions of time. It is unclear whether this conclusion was intended to be a general statement of principle or limited to the contract before the court. As a general statement it would appear to be at odds with other cases in which retrospective assessments of extensions of time have been made and the softened stance on this issue taken in the 2nd Edition of the SCL Delay and Disruption Protocol. It also seems doubtful that any general rule can be stated for the assessment of entitlements to extensions of time, as ultimately the question will depend on the terms of the contract. Many contracts will require a broad ranging factual enquiry as to the cause of delay, leaving little scope for approaches limited to facts known only at the time the events in question occurred. The court’s comments are likely to encourage further debate over prospective and retrospective approaches to delay analysis in English law. From a practical perspective, it would tend to be beneficial to a contractor to make applications for extension of time and press for these to be determined at an early stage. For contracts which allow this (such as JCT) it can mean that the contract administrator, if properly administering the contract, has to analyse prospectively. In reality, decisions on applications are often delayed meaning that a retrospective approach tends to be applied, taking account of the factual position as it then developed and despite any legal arguments which might be made in favour of a prospective approach.
References: Bwllfa and Merthyr Dare Steam Colliers (1891) Limited v The Pontypridd Waterworks Company [1903] AC 426. Walter Lilly & Company Ltd v Mackay & Anor [2012] EWHC 1773 (TCC). http://www.bailii.org/ew/cases/EWHC/TCC/2012/1773.html Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd [2017] NIQB 43. www.bailii.org/nie/cases/NIHC/QB/2017/43.html Fluor v Shanghai Zhenhua Heavy Industry Co, Ltd [2018] EWHC 1 (TCC). http://www.bailii.org/ew/cases/EWHC/TCC/2018/1.html