Case in brief North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744
By Jeremy Glover
Here, the claimant, the contractor and the defendant, the employer, had agreed certain bespoke amendments to the JCT Design and Build Contract 2005, one of which concerned the way in which extensions of time would be dealt with in certain circumstances.
The parties had amended clause 2.25.1.3(b) to include the following: “3. and provided that (a) the Contractor has made reasonable and proper efforts to mitigate such delay; and (b) 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 then, save where these Conditions expressly provide otherwise, the Employer shall give an extension of time by fixing such later date as the Completion Date for the Works or Section as he then estimates to be fair and reasonable.” By way of a refresher, the CA provided the following definition of concurrency as given in the case of Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 (Comm), where Hamblen J (as he then was) said: "A useful working definition of concurrent delay in this context is 'a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency' – see the article Concurrent Delay by John Marrin QC (2002) 18(6) Const. L.J. 436." Indeed, the CA also noted that concurrent delay was not a concept that was ever considered by the courts until the late 1990’s. Here the works were delayed, and a dispute arose between the parties as to the proper extension of time due to the appellant, NMBL. A major element of that dispute centred on the extent to which Cyden could take clause 2.25.1.3(b) into account. At first instance Mr Justice Fraser had decided that they could. On appeal LJ Coulson considered the concept of prevention. He referred to the three principles set out in the Multiplex v Honeywell case, namely that: “(i) Actions by the employer which are perfectly legitimate under a construction contract may still be characterised as prevention, if those actions cause the delay beyond the contractual completion date. (ii) Acts of prevention by an employer do not set time at large, if the contract provides for an extension of time in respect of those events. (iii) Insofar as the extension of time clause is ambiguous, it should be construed in favour of the contractor.”