If you are unable to complete your works by the date for completion for reasons that are not your fault and not at your risk, you should be entitled to additional time beyond the originally agreed date or period for completion of the works. Such extension of time protects you from any claim for damages or liquidated damages for the delay. All the standard forms and a properly drawn-up bespoke form of contract will require you to give notice to your client or employer of your intention to claim an extension of time. Simple orders will not contain such requirements but the giving of notice is still best practice. Here are our tips for pursuing an extension of time:
- Aim for clarity. A notice of delay should be clearly labelled, preferably refer to the contractual clause under which it is given and contain an unambiguous request for an extension of time and/or the fixing of a new completion date. Some standard forms of contracts, make it necessary to give ‘early warning’ of an event which might lead to delay, so that the project manager or contract administrator may consider what precautions or practical steps ought to be taken and what records kept.
- Record keeping is vital. Keep full and proper written records of all delays and effects: photos and videos are often compelling evidence.
- Comply with the Contract. Always have regard to and comply with all the contractual provisions as to the form, content, timing and manner of service of the notice. The notice may be required to be accompanied by further information, an updated programme, and the notice itself may have to be updated from time to time. Even in the absence of a contractual requirement, it is often advisable to comply, so far as possible, with any reasonable request for further information.
- The contract may require (and in any case the notice should set out) the reasons for the delay(s), the actual or anticipated effects of the delay(s) on the progress of the works and/or to the completion date, and if required or possible, details of the steps taken to prevent or minimise the delay(s). Sometimes it will be appropriate to specify the period of the extension of time that is required.
- The timing of the giving of notice is important. The contract may provide that notice is to be given “as soon as” or “immediately” the cause or fact of delay becomes apparent, or within a specific period of the happening of a delay event. If notice is not given in time the right to extension of time may be lost.
- In order to correctly format and issue a notice, you should seek the requirements stated in the contract provisions. In the absence of express provisions, the notice should be in writing, delivered to the opposite party at its usual or last known business address (or, in the case of an individual, his/her home address) and in the case of postal delivery by means which record the fact and date of delivery.
- The right to an extension of time may be lost if the appropriate notices and details required by the contract are not given in the right form and mode, at the right time and delivered to the right place. It may happen that parties waive the obligation for formal written notices in favour of a more pragmatic approach on site. This is not recommended but at the very least you should ensure that any information regarding delays are raised and recorded not just in your own records but at site meetings and included in the meeting minutes.
- It is unwise to ‘accelerate’ to avoid or recover delay without an instruction to do so. Even if the delay is your fault so that you have no entitlement to additional time and have a potential liability for liquidated damages, you should discuss any proposals with the other party first. It may, in appropriate cases, be possible to offer unpaid acceleration in return for the waiver of liquidated damages. In any case you will want to avoid any liability for disruption to others engaged on the works.
Slater Heelis’ Construction & Engineering Team has extensive experience advising employers, contractors, sub-contractors and professional consultants regarding issues concerning delay.
Please contact us on 0161 672 1255 or get in touch with our Construction & Engineering team.