Disputes with Completion Dates

Disputes with Completion DatesAs menti unrivalledd in the introduction, disputes associated with ut nameost dates often pass complicated due to association with different legal concepts. To fully circumnavigate the research hooked matter, it is important to give a brief overview of such principles, as detailed further below.Most commonly the affirmers liabilitys in keep an eye on of time for completion of the whole shebang ar expressly defined OV1within the term of slim, it is yet not uncommon for the extent of such obligations to be set forth less definitively.While the time for completion go out be expressly defined as a fixed date or a fixed period and fecal matter be easily identified, it is also demand to for the contract to provide for the mechanism of establishing completion e.g. commencement date where completion is determined by a fixed period.Where the time for completion is dim to such extent that the contracting parties intentions cannot be open or are n on-existent, then the law visualizes time to be at large OV2and implies a requirement to complete the works within well-founded time.The principle of reasonable time under English Law goes back to 19th century1, where it was established that for if a delay is not attributed to causes within a political partys control, nor such party acted negligently, it depart be considered that obligations are duly fulfilled.Reasonableness cannot be effrontery a strict definition and is assessed on a case-by-case basis, taking into consideration stack prevailing during the period of performance2.Some authors on the subject view that both ordinary (e.g. site access, government permits, resource availability, etc.) and pyrotechnic circumstances (e.g. strikes, client variations, etc) should be taken into consideration when establishing reasonable time3.Occasionally, approximately bespoke contracts may contain time is of the essence terms. In contractual context, it has stricter meat than its foreveryday application i.e. if something isnt done swiftly, it will be in any case lateOV4.4Inclusion of such terms in a contract significantly elevates the rights and obligations to the contract, whereby failure to meet the completion date will be hard-boiled as a fundamental breach of the contract5.While the contract may be found repudiated, the existence of a time is of the essence grooming alone may not be sufficient and qualifying rules should be applied in such circumstances6.An another(prenominal) area of significant immensity in establishing whether completion date has been adhered to, is the thinking of completion itself.Ordinary meaning of completionOV5 requires fulfilment of all obligations, which when applied in the context of entire contractsOV6, may result in harsh consequences. It is extremely rare for construction contracts to be considered in the same manner and flirts will generally take a practical view as to what constitutes completion within constru ction industry7.To ponder that position, standard construction contracts have developed various definitions for use in the industry, such as practical8 or substantial9 OV7completion, which irrespective of the words used to fall upon it, are intended to reflect the courts position as summarised by assay Newey QCOV810In my opinion there is no room for completion as distinct to practical completion. Because a building can seldom if ever be built precisely as required by drawings and specification, the contract realistically refers to practical completion and not completion but they mean the same.Eminent legal writers on this subject11 concur with this viewUsually it will mean bona fide completion free of known or patent defects so as to enable the owner to enter into occupation. The words practical or substantial in the English standard forms do no more than indicate that trivial defects not affecting beneficial occupancy will not prevent completion (the more so, of course, if the contract provides for a charge or defects liability period) 12Irrespective of exact term used, completion can be summarised as a significant gateway, which signifiesthe transfer of risk for the safekeeping of the works from the Contractor to the Employerrepossession of the site by the Employerthe start of the period during which the Contractor will be liable for defects in the worksthe end of the Contractors liability for late completionrelease of retention monies from the Employer to the Contractorthe end of Contractors obligation to insure the worksUnderstanding of the above has a clear richness in resolving any disputes arising out of delay, extension of time and other time related matters.In addition to an obligation to complete the works by a specific date or within a specific time period, most contracts make specific provision for the contractile organ to proceed with the work and make progress with due diligence. Understanding of this term may, in first instance, appear to have only a remote connection to the subject matter. However, as shown in the next chapters, it is of significant magnificence when it comes to establishing the contractors responsibility when the time of completion is set at large.The courts have held that the assessment of what constitutes diligence must be based on the surrounding circumstances of each case. For example, per Lord Justice Parker13 what is due diligence and expedition depends, of course, on the object which is sought to be achieved, who went on to explain the relation amidst diligence and specific contract object, time scales, complexities, etc.Similarly, in the erupt tribunal of Appeal case of West Faulkener Associates v capital of the United Kingdom Borough of Newham (1994)14 the court found that literal interpretation, commercial logic and common sense required the contractor to proceed both regularly and diligently.15In the absence of an hardcore due diligence obligation within a contract, some author s consider that common law implies such a term on the chiliad of business efficOV9acy16.1 Lord Watson in Hick v Raymond and Reid 1893 AC 222 British Steel Corporation v Cleveland Bridge and Engineering Co. Ltd 1984 1 All ER3 I.N.nDuncan- Wallace in Hudsons Bilding and Engineering Contracts, 11th Edn., 1995, Sweet maxwell Ltd, p.1194 Oxford Dictionary of English 2nd edn., 2008, Oxford University Press5 Carr v J.A. Berriman Pty. Ltd. 1953 ALJ 273 High Court of Australia6 United Scientific Holdings Ltd. v Burnley Council 1977 2 WLR 8067 E.g. Emson Eastern Ltd v EME Developments Ltd 1991 55BLR 1148 JCT9 sparkler10 Emson Eastern Ltd v EME Developments Ltd 1991 55BLR 11411 For example B. Eggleston in Liquidated Damages and Extensions of Time, 3rd edition, 2009, Wiley-Blackwell, and I.N. Duncan-Wallace in Hudsons edifice and Engineering Contracts, 11th edn., 1995, Sweet Maxwell Ltd.12 I.N. Duncan-Wallace in Hudsons Building and Engineering Contracts, 11th edn., 1995, Sweet Maxwell Lt d. p110913 Greater London Council v The Cleveland Bridge Engineering Co. Ltd 1986 34 BLR 5014 West Faulkener Associates v London Borough of Newham 1994 71 BLR 115 B. Eggleston in Liquidated Damages and Extensions of Time, 3rd edition, 2009, Wiley-Blackwell, p 2416 I.N. Duncan-Wallace in Hudsons Building and Engineering Contracts, 11th edn., 1995, Sweet Maxwell Ltd., p1125OV1Insert ref. to one of the standard contractsOV2Insert ref.OV3Could expand slightly to beef upOV4Check later ed. Of the dictionary. alike check single or double parentheses throughoutOV5Insert refOV6Ref.OV7Full ref.OV8Pp berthOV9Link to the next chapter?