Carillion Construction Ltd v Emcor Engineering Services Ltd & Anr [2017] EWCA Civ 65

During the construction of the new court buildings where the TCC is based, delays occurred. Carillion blamed Emcor for part of the 182-day delay. During the hearing of preliminary issues, the court was asked whether, assuming that Emcor was entitled to an extension of time, that extension should:

(i)Run contiguously from the end of the current period for completion to provide an aggregate period within which Emcor’s works should be completed; or

(ii)Fix further periods in which Emcor could undertake their works, which were not necessarily contiguous but reflected the period for which it had been delayed.

The contract in question was based on the DOM/2 form, 1981 edition. Clause 11.3 provides as follows:

“11.3 If on receipt of any notice, particulars and estimate under clause 11.2 the Contractor properly considers that:

 any of the causes of the delay is an act, omission or default of the Contractor, his servants or agents or his sub-contractors, their servants or agents (other than the Sub-Contractor, his servants or agents) or is the occurrence of a Relevant Event; and the completion of the Sub-Contract Works is likely to be delayed thereby beyond the period or periods stated in the Appendix, part 4, or any revised such period or periods,

 then the Contractor shall, in writing, give an extension of time to the Sub-Contractor by fixing such revised or further revised period or periods for the completion of the Sub-Contract Works as the Contractor then estimates to be reasonable.”

Recorder Jefford (as she then was) had held that the natural meaning of the words used of the sub-contract conditions, when read in context, was that any period of extension granted will be added contiguously to the end of the current period within which the sub-contractor is required to complete its works. The CA agreed. The CA accepted that there may be situations in which clause 11.3 may lead to an unsatisfactory result. For example it could exempt a sub-contractor from liability during a period when it was in culpable delay or render the sub-contractor liable to the contractor for a period when it was not in culpable delay. However, clause 11.3 as interpreted by the CA (and probably as most practitioners had assumed it worked in any event) was practicable, workable and accorded with commercial common sense.