In April 2016 the court had to find a home for a subcontract extension of time under the DOM/2 form of subcontract. It decided that it should follow immediately, contiguously, after the current completion date rather than standing on its own, separately, at the time that the relevant event occurred, after the period of delay for which the subcontractor was responsible. This meant, however, that the subcontractor might have no liability to the contractor, during a period when it was actually in delay, for resulting loss or damage. And it would then be liable to the contractor during a period when it was actually not in delay, for example because it was complying with a late variation instruction. But because the loss suffered by the contractor during those two periods was unlikely to be the same, one or other party would gain a windfall benefit. The Court of Appeal could see no answer to this issue but did it still agree with the court’s original decision?
It did. While the consequence of the contiguous approach was, at the very least, an oddity, anomalies of this kind did not displace the natural meaning of the extension of time clause, which was practicable and workable.