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Lads! Lads! Lads!: examining the interaction between the construction law "prevention principle" and liquidated damages.

Christie, David

Authors



Abstract

There is a legal principle used by those dealing in practice with construction contracts, that where a construction project is not completed by the agreed completion date, but as a result of something happening which was within the responsibility of the employer, then the contractor is not bound to complete by that date. They have been prevented from doing so. Instead, the obligation becomes one to complete within a reasonable time; time is "at large". There has been significant discussion of this "prevention principle" among construction lawyers. Indeed, recent years have seen this idea move beyond construction terminology in English law and become more broadly used. Scots law recognises this principle but there has been relatively little case law on the subject. For example, the key case embodying "time at large", T&R Duncanson v Scottish CThere is a legal principle used by those dealing in practice with construction contracts, that where a construction project is not completed by the agreed completion date, but as a result of something happening which was within the responsibility of the employer, then the contractor is not bound to complete by that date. They have been prevented from doing so. Instead, the obligation becomes one to complete within a reasonable time; time is "at large". There has been significant discussion of this "prevention principle" among construction lawyers. Indeed, recent years have seen this idea move beyond construction terminology in English law and become more broadly used. Scots law recognises this principle but there has been relatively little case law on the subject. For example, the key case embodying "time at large", T&R Duncanson v Scottish County Investments is referred to in the leading contract law textbooks as authority for the rule, but has itself only been cited once in court in the last 107 years. As a result, the understanding of how the principle operates in Scots law is underdeveloped. This paper will focus on one area of particular controversy in that respect which is the interaction of the construction prevention principle with liquidated and ascertained damages ("LADs") clauses. This paper will identify the nature of the controversy in English law and examine the Scots law in that area. Taking these together, it will suggest that Scots law suggests a better approach. ounty Investments is referred to in the leading contract law textbooks as authority for the rule, but has itself only been cited once in court in the last 107 years. As a result, the understanding of how the principle operates in Scots law is underdeveloped. This paper will focus on one area of particular controversy in that respect which is the interaction of the construction prevention principle with liquidated and ascertained damages ("LADs") clauses. This paper will identify the nature of the controversy in English law and examine the Scots law in that area. Taking these together, it will suggest that Scots law suggests a better approach.

Citation

CHRISTIE, D. 2024. Lads! Lads! Lads!: examining the interaction between the construction law "prevention principle" and liquidated damages. Juridical review [online] 2024(1), pages 27-37. Available from: https://uk.westlaw.com

Journal Article Type Article
Acceptance Date Jan 16, 2024
Online Publication Date Mar 22, 2024
Publication Date Mar 31, 2024
Deposit Date Jan 22, 2024
Publicly Available Date Mar 23, 2025
Journal Juridical review
Print ISSN 0022-6785
Publisher Sweet and Maxwell
Peer Reviewed Peer Reviewed
Volume 2024
Issue 1
Pages 27-37
Keywords Construction contracts; Liquidated and ascertained damages (LADs); English law; Scots law
Public URL https://rgu-repository.worktribe.com/output/2217597
Publisher URL https://uk.westlaw.com

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