Can parties agree to a specific regime of delays in their design and build contract, even if the general common law has developed doctrines to deal with that issue? Does that general law feed into the interpretation given to that regime? The answer may seem obvious, but was recently discussed in North Midland v Cyden.
The case involved the building of a substantial house in Lincolnshire. During the building process, substantial delays occurred and the claimant contractor applied to the defendant employer for an extension of time pursuant to a clause in the design and build contract. The defendant responded that concurrent delays were caused by ‘culpable delays attributable’ to the claimant, and therefore that there was no right to an extension of time.
The claimant sought a declaration that the clause at issue in the contract made time at large where a delay was caused by a ‘relevant event’ (an event entitling the claimant to an extension of time) where that delay was concurrent with another delay for which the claimant is responsible.
The issue with the claimant’s argument was that the relevant clause specifically stated that any concurrent delay caused by the claimant will not be taken into account in determining whether the claimant is entitled to an extension, even where a ‘relevant event’ has caused a delay.
The claimant brought its case under Multiplex Construction v Honeywell Control Systems  EWHC 447 (TCC), and argued that the ‘doctrine of prevention’ means that reading of the contract cannot be permitted. The ‘doctrine of prevention’ is the idea that the employer is responsible for something that prevents the contractor from complying with their duties, which the claimant argued meant that time was at large and that they now simply had to complete the works within a reasonable time.
Mr Justice Fraser stated that the prevention principle simply did not arise, and that the only issue was the correct construction of the clause at issue in the case. The clause clearly stated that if the contractor were responsible for a delay that was concurrent with another delay caused by a ‘relevant event’, the latter ‘shall not be taken into account’ (paras 16 to 18). There is no general rule of law that prevents the parties from agreeing that concurrent delays ought to be dealt with in a certain way, and that the doctrine of prevention and Multiplex had no bearing on the true issue of the case (para 19).
The judgment, at times scathing towards the claimant’s arguments, is perhaps justifiably terse. Though it is unclear from the report what the specific argument of the claimant was, it seems trite law that a common law doctrine does not generally take precedence over the parties expressly agreed terms. Some examples to the contrary do exist, such as illegal contracts, but there specific public policy grounds justify a departure from the parties’ express agreement – in essence a court of law cannot lend legal enforcement to an illegal obligation.
Perhaps it needed to be tested whether the doctrine of prevention could be superior to an express term, but it was always unlikely. Probably aware of this, the claimant chose to argue instead that the term is to be read in light of general law, which Fraser J appears to reject because there is no ambiguity in the term. In a sense this case therefore confirms the accepted wisdom of the principle of freedom of contract, that most of contract law consists of default rules that apply if the parties do not stipulate otherwise, but will yield to contrary expressions of intention.