The judge cited the Supreme Court’s decision earlier this year in Wood v Capita Insurance Services Ltd (2017) that followed Arnold v Britton (2015) and he stated that (para 17) “The starting point is the language itself; the words the parties have themselves chosen. In the case of this term of the contract in these Part 8 proceedings, the objective meaning of this provision is barely in issue between the parties at all.”
The parties had quite clearly agreed that, if the contractor were responsible for a delaying event which caused delay at the same time as, or during, the delay caused by a Relevant Event, then the delay caused by the Relevant Event would not be taken into account when assessing the extension of time. In reaching its decision, the court noted (“the final nail in the coffin”) that the definition of "Relevant Event" included any act of prevention and that acts of prevention were accordingly to be taken into account expressly in the way identified in the extension of time clause.
Interestingly, the court did not refer to what is known as ‘the Malmaison approach’ (after the decision in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999)), which is often thought by commentators to be the favoured approach to resolving issues of concurrency of delay events of equal causative potency in extension of time claims. Under this approach, where there are two concurrent causes of delay, one of which is a relevant event, and the other is not, the contractor is entitled to an extension of time for the period of delay caused by the relevant event notwithstanding the concurrent effect of the other event.
The decision is another in a line of cases in which the courts have held up the principle of freedom of contract and given emphasis to the words used by parties in their agreements. The doctrine of prevention is not superior to an express term to the contrary, especially where there was no ambiguity in the term. The decision conflicts with the approach to concurrent delay taken by the Society of Construction Law in the Second Edition of its Delay and Disruption Protocol published earlier this year. It is a decision that will very much be welcomed by employers and their lenders. Contractors will no doubt take notice and seek to negotiate out such wording, given the potential for concurrent delays to occur on construction and engineering projects.