Concurrent Delays & Freedom of Contract

Under any construction contract, there will be provision for extensions of the time for completion caused by qualifying events, for example variations or delays by the employer or its agents (primarily the architect/engineer).  The purpose of such provisions is to preserve the employer’s entitlement to claim delay damages.  Such extensions of time are, by necessity, creatures of contract, there being no common law right to extensions of time.  Under the prevention principle the consequence of an act of prevention or delay by the employer is to put time at large, thereby potentially depriving the employer of delay damages until the contractor has been allowed a reasonable time to complete.

What is often not covered so well in construction contracts is whether or not the extension of time is affected by delays which may be caused by an event for which the contractor is responsible, or which is otherwise not a qualifying event.  A classic example would be where a contractor is in delay (prior to the due date for completion) and a qualifying event occurs; or there is a qualifying event, and coterminously the works are similarly delayed by an event for which the contractor is responsible – ie, the works could not have been carried out at that time in any event.

Should the contractor be “let off the hook” for its own delay by the qualifying event?