What is Time at Large?

Yesterday Mr William Pybus asked me a question in a LinkedIn post – “What is time at large? “.

I’m pretty sure that he knew exactly what it was all about but it seemed he was anxious to have an answer.

So this is my take on the subject.

I’m not going to delve into the legal history of this subject but I will discuss a few recent cases where I have been involved in setting time at large.

The sole purpose of an extension of time clause in a construction contract is to protect the employer’s right to deduct liquidated and ascertained damages in the event of a contractor’s delay.

If a contractor is in culpable delay then the employer can collect his liquidated damages.

If the employer causes delay to the works – usually by way of an act of prevention – then without the benefit of an extension of time clause he cannot collect his liquidated damages.

When time is set at large in such circumstances the contractor is obliged to complete in a reasonable time. If you need to know what is a reasonable time then ask a delay analyst. If the contractor does not complete the works in a reasonable time after time has been set at large then the employer may deduct general damages.

Time at large is an archaic term with no equivalent simple English usage – I would suggest “a reasonable time to complete” as a suitable alternative.

The following are a few examples of where I have encountered time at large in real cases over the last three years.

No extension of time clause.

Nr 1

I was brought in late by an employer after he had lost an adjudication so as to prepare a defence against what was anticipated to be an incoming loss and expense/prolongation cost claim from the winning contractor.

The agreed contract was a few paragraphs which set down the contract price and the completion date and a brief scope of works based on the contractor’s design. There was no extension of time clause.

The contractor won the adjudication on the basis that time was set at large and that he had completed in a reasonable time. On a careful reading of the contractor’s referral it was obvious that there was no act of prevention from the employer and the adjudicator had been misled.

Upon receipt of my report there was a brief spell of negotiation and no further adjudication took place. The contractor got his time but no money.

Nr2

in this case a top rank international consultant who had drafted a bespoke form of contract for a multi-million US dollar manufacturing plant based in the Middle East. There was no extension of time clause in the contract. The employer – among other acts of prevention – failed to give possession of the site to the contractor so that he could start work.

The applicable law in the arbitration was English law. If it had been one of the local contract codes based on the old “code Napoleon” then the concept of time at large was not recognised. We would have had to fall back on the principal of “unjust enrichment”.

I advised the contractor of his legal position and the anticipated result in a forthcoming arbitration but he refused to pursue the concept of setting time at large so I resigned. As far as I know they are still arguing.

Two Contracts – One Project – One Contractor.

In this context the contractor was engaged to construct a luxury house in the UK on a shell and core basis. The contractor was then issued a letter of intent to proceed with the M&E and fit out works.

This was under a standard JCT contractors design and build form of contract.

The contractor engaged an experienced consultant to prepare an extension of time which he did in a traditional manner based on contract 1. There were anomalies between the interface of the two forms of contract in that – for instance – the floor screed was in contract 1 whereas the underfloor heating pipes was in contract 2.

It was the adjudicator who spotted the anomalies between the two contracts awarded that time be set at large on the basis that the JCT form of contract did not allow for delays caused on one contract to be an act of prevention by the employer on the other. Even though the prevention had actually been caused by the same contractor.

The employer took the case to the TCC for judgement and you can read all about it on Stellite v Vascroft which ruled in the contractor’s favour. I was then engaged to ascertain what would have been a reasonable time to complete both the contracts. The employer however terminated the contracts.

Failure to abide by the contract.

Main contractor had engaged a subcontractor to carry out particular works. I was engaged by the subcontractor to prepare an extension of time for multiple causes of delay. There were one or two subcontractor culpable causes intermingled with the main contractor’s act of prevention. There was no concurrency.

One of the events was a delay of four months for the subcontractor to start the works. Subcontractor served a timely notice for an extension of time which the main contractor refused to award.

The extension of time clause included the phrase “in the event of a timely notice the main contractor SHALL award an extension of time “. That word SHALL made the clause mandatory in that the contractor had to obey the clause and award this extension of time. It was a very simple calculation where you just add four months to the end date – allow for holidays – set a new completion date. The main contractor failed to do so.

In other forms of contract such as the JCT the word MAY is used which means such action is not obligatory. In this case it was a simple matter for me to argue that time been set at large.

This took me just under three days to complete my report whereas full-blown delay analysis would have taken at least three weeks.

Impossible conditions.

I was engaged by a main contractor in the UK to prepare extension of time claims on a large industrial project. The contract was a bespoke form and it did contain interlinked extension of time clauses that were so complex it would have been impossible to carry them out in accordance with the contract.

I set out a sort of linked “what if” –“yes no” flowchart the steps that had to be taken in order to present any form of extension of time justification.

I decided that it would be impossible to do so.

Their in-house lawyer was called in and I ran my findings past him and thought about it for a bit before deciding it was worth a try to use it to set time at large.

I drafted a letter from the contractor and the employer negotiated the settlement. My potential engagement of at least three months lasted 2 ? weeks.

If you need any further advice on this subject or any other please contact

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