Everything you need to know about Acts of Prevention. A guide for subcontractors

1        The Peak Principle.

1.1  Peak Construction Ltd v McKinney foundations Ltd. (1970)

1.1.1    A brief summary of the case is extracted from Google

Cases - Peak Construction Ltd v McKinney Foundations Ltd | isurv

Pursuant to a bespoke contract devised by Liverpool Corporation, the claimant builders were engaged to construct a multi-storey block of flats within 24 months. Clause 23 of the contract empowered the architect to extend time in the event of (amongst other things) 'unforeseen circumstances'. The defendants were nominated subcontractors specialising in the design and construction of piles. During the course of the works it was discovered that one of the piles was constructed from unsuitable materials and was, as Salmon LJ put it, 'useless'. Works were immediately suspended and did not recommence for some 58 weeks, ostensibly because of the time it took the Liverpool Corporation to approve the proposed remedial works. Remedial works were eventually carried out which took approximately 6 weeks to complete.

1.1.2    This was an early case that recognised that an act of prevention by someone involved in the contract, in this case the Employer, would be grounds for an extension of time.

1.1.3    In this case with the bespoke form of contract an act of prevention was not listed as a relevant event.

1.1.4    Time was therefore set at large.

1.2  Recognising Act of Prevention.

1.2.1    If you are a subcontractor working in a sequence with other trade subcontractors you are prevented from working in accordance with your programme by a predecessor trade then that is an Act of Prevention.

1.2.2    If you are working under a standard form of contract has not been amended then the contractor’s other subcontractors should be listed as possible causes for acts of prevention.

1.2.3    In the JCT forms these are called “employers persons” so an extension of time is valid grounds for the subcontractor to claim an EOT.

2        Recent cases regarding Acts of Prevention.

2.1  No mention in the contract.

2.1.1    In this case there was no clause in the bespoke form of contract that described an act of prevention.

2.1.2    Time was therefore set at large.

2.2  Wrong mention in the contract

2.2.1    in this case the bespoke clause in the contract stated that an extension of time will be awarded on the basis that “An Act of Prevention is caused by the Employer”.

2.2.2    The project was managed for the employer by world-class construction management company who drafted the contract to manage the trade contractors

2.2.3    The Act of Prevention was in fact caused by other trade contractors engaged on the works, nothing at all to do with the Employer.

3        Conclusion.

3.1  Not mentioned in the contract?

3.1.1    Then if the sequence of your work is delayed by any form of Acts of Prevention then you are entitled for time to be set at large under your subcontract.

3.2  Mentioned in the contract correctly?

3.2.1    Then you are entitled to claim an extension of time.

3.3  Mentioned in the contract incorrectly?

3.3.1    Then if you can demonstrate the facts of the case such that your employer cannot award an extension of time and time will be set at large.

3.4  Recognising the case.

3.4.1    The key to a successful claim for Acts of Prevention lies in a thorough understanding of the terms of your subcontract.

3.4.2    If you need any assistance in this matter then please contact:

Mike Testro

25 Trinity Street

Bungay

Suffolk – NR35 1EH

01986892345  07798765800

[email protected]

For an independent case review of your situation.