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DELAY, PROGRESS AND PROGRAMMING

International Construction Law Review

DELAY, PROGRESS AND PROGRAMMING A R (TONY) MARSHALL Partner, Lovells LLP 1. Introduction A high proportion of the disputes over international projects arise from problems of delayed completion. Given the size, complexity and duration of many of these projects, and the volume of documents which they generate, it is common for such disputes to throw up a host of factual and legal issues. This paper considers the main types of event which commonly cause delay. It then reviews the provisions of some of the principal standard forms of contract in use internationally relating to time for performance, progress, programming, acceleration and delay damages, before commenting on the main principles of law relevant to the application of those provisions in a common law context (with particular reference to the common law of England and Wales and of other Commonwealth jurisdictions). For the most part the relevant principles are well settled in English law, although of course issues often arise as to their application to the particular facts. But in two particular areas debate continues as to the principles themselves. The first area concerns the proper approach to the awarding of additional time for completion in cases of so-called “concurrent” delay: that is to say, cases where the project has been delayed simultaneously by causes of equal potency, one being the responsibility of the employer and the other the responsibility of the contractor. The second concerns the situation where a contractor has been delayed by his employer but has failed to comply with a strict requirement for the giving of notice of such delay, as a result of which failure he has lost his right to an extension of time—so that, on the face of it, he will have to pay liquidated damages for a period of delay caused not by him but by the employer. 2. Typical events affecting progress and completion Projects may be delayed by a range of factors. These will divide into factors which, on the one hand, in the absence of express provision to the contrary, will be at the contractor’s risk, such as bad weather conditions or unexpectedly unfavourable ground conditions, and, on the other hand, failures to perform on the part of the employer, or indeed instructions from the employer, compliance with which inevitably causes delay. Whilst it is not possible to list comprehensively all the types of event that may affect progress, those which are commonly encountered include: The International Construction Law Review [2010 138

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