In the case of Severfield (UK) Ltd v Duro Felguera UK Ltd (No. 2)  EWHC 3066 (TCC), the Technology and Construction Court (TCC) in England and Wales declined to find ‘time at large' under a construction contract where the delays in question were covered by a broad extension of time clause.
When a construction project is delayed through the fault of the employer, the employer is prevented from enforcing the original completion date and / or claiming liquidated damages (assuming the contractor has followed all ancillary notice provisions). In this situation, it is not uncommon for contractors to argue that time is 'at large' and the contractor's obligation is simply to complete the works within a reasonable time. Whether or not a contractor will be successful in such a claim will depend on the contract between the parties and the facts surrounding the delay.
The key facts of the case are as follows:
- The defendant, Duro Felguera UK Limited ("Duro"), engaged the claimant, Severfield (UK) Limited ("Severfield"), as a sub-contractor to provide structural steelworks for a power plant project undertaken by the defendant.
- The sub-contract prescribed completion dates for each part of the works. In order to meet these dates, Severfield required: (i) the necessary design information in good time, and (ii) access to the relevant parts of the site.
- The design information was not provided in good time and Severfield was not permitted access to the site in most cases until after the contractual dates for completion. It was therefore impossible for Severfield to meet the stipulated dates.
Severfield argued that, due to Duro's clear role in causing the delays, time was at large on the project and therefore Severfield's only obligation was to complete the works within a reasonable time, which it did. In the alternative, Severfield argued that it was entitled to an extension of time in relation to each of the delays.
The court determined that Duro was responsible for the delays and, in the circumstances, Severfield was entitled to an extension of time under clause 13 of the sub-contract. It was therefore not strictly necessary for the court to consider the time at large argument, but the court stated that it would not have been appropriate to find that time was at large on the facts of the case.
The court considered the well-known passage in Thorn v London Corporation  1 App. Cas. 120 (HL) approving time at large, in which Lord Cairns said that if there was additional work:
"…so peculiar, so unexpected, and so different from what any person reckoned or calculated upon, that it is not within the contract at all; then, it appears to me, one of two courses might have been open to him; he might have said: I entirely refuse to go on with the contract…or he might have said, I will go on with this, but this is not the kind of extra work contemplated by the contract, and if I do it, I must be paid a quantum meruit for it."
This dicta was cited in the later cases of Blue Circle Industries PLC v Holland Dredging Company (UK) Limited (1987) 37 BLR 40 and Sir Lindsay Parkinson & Co v Commissioners of His Majesty's Work and Public Buildings  2 KB 632. The court in the present case stated that Thorn applied only in those circumstances where additional works were so different in nature to those contemplated in the contract that they did not properly amount to contractual variations at all. Blue Circle and Lindsay Parkinson fell within this category of cases based on their particular facts. The court also found it significant that all three of these previous authorities were concerned with money rather than time for performance.
In the present case, all of the delays were covered by the extension of time clause, consequently the court found it conceptually difficult to accept Severfield's argument that the delay events were so far outside the contemplation of the contract as to render time at large. The court considered the case of McDermott International Inc v McAlpine Humberoak Limited  58 BLR 1 as guidance that English courts will rely on contractual mechanisms to the extent possible rather than relying on extra-contractual concepts such as time at large or frustration. The court also reiterated that the American doctrines of 'cardinal change' or 'cumulative change' do not apply under English law.
This case confirms that the courts of England and Wales will be hesitant to find that time is at large in circumstances where a construction contract contains an extension of time provision that applies to the delay events in question. The court's attitude should be welcomed by parties to construction contracts as it provides the parties with greater certainty concerning the application of their contract and, by extension, the delivery of their project. The case also serves as a reminder that both contractors and employers should pay close attention to the drafting of the extension of time clauses in their contracts since the court will be reluctant to look beyond the agreed terms.
Trainee Solicitor Phoenix Kushner contributed to the development of this publication.
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