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THE PREVENTION PRINCIPLE AND MAKING THE CONTRACTOR PAY FOR EMPLOYER DELAY: IS ENGLISH LAW DEPARTING FROM ITS ROOTS? (PART 1)

International Construction Law Review

THE PREVENTION PRINCIPLE AND MAKING THE CONTRACTOR PAY FOR EMPLOYER DELAY: IS ENGLISH LAW DEPARTING FROM ITS ROOTS? (PART 1) TONY MARSHALL Senior Counsel, Hogan Lovells’ Construction and Engineering Practice Group “If the failure to complete on time is due to the fault of the Employer and the Contractor, in my view the (liquidated damages) clause does not bite. I cannot see how, in the ordinary course, the Employer can insist on compliance with a condition if it is partly his own fault that it cannot be fulfilled” 1 1. INTRODUCTION It has been understood in English law for centuries that, where a 
contractor undertaking work is prevented by his employer from completing his work by the agreed completion date, the agreed completion date ceases to apply and, the date having “gone”, an obligation to complete within a reasonable time is substituted. Any right on the part of the Employer to damages for failure to achieve the original date also falls away; the Employer is left to his remedy in general damages for any failure to complete within a reasonable time. The expression which came to be used to describe this situation, in the early 19th century cases, was that the Contractor was, as a result, “ left at large ”, both as to the time for completion and as to any damages payable (time and damages were “ at large ” in the sense of being “ no longer fixed; unconfined ”). Hence the expression so often on the lips of the construction lawyer (not to mention the enthusiastic claims consultant) – “ time is at large ”. Those consequences flow from the application of the time-hallowed “prevention principle” of the common law. According to that principle, he who prevents the performance of his contractual counterparty cannot seek recompense for the resulting failure of the counterparty to perform. 1 per Salmon LJ in Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (CA) [1976] 1 BLR 111 at 121. 326

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