Contractor can't escape paying damages for building delays

A contractor was liable for delays on a building project even if it was not responsible for all the factors associated with those delays.

That was the ruling of the Court of Appeal in a case involving North Midland Building Ltd and Cyden Homes Ltd.

The two parties had agreed bespoke amendments to the JCT Design and Building Contract 2005 form, stating that in assessing an extension of time, any delay caused by the employer that happens at the same time as a delay for which the contractor is responsible shall not be taken into account.

The works were delayed, and the contractor applied for an extension of time, relying on various causes allegedly attributable to the employer.

The employer responded that concurrent delays had been caused by delays attributable to the contractor, and therefore the contractor had no right to an extension of time.

The Court of Appeal ruled in favour of the employer. It said the clause was unambiguous: where a delay was due to the contractor, even if there was an equally effective cause of that delay for which the employer was responsible, liability for the concurrent delay rested with the contractor so that it would not be considered in calculating any extension of time.

It also held that there was no basis in the contract to prevent the employer from claiming damages.

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