The Prevention Principle, Liquidated Damages and Concurrent Delays

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The Prevention Principle, Liquidated Damages and Concurrent Delay in Shipbuilding Contracts

Elizabeth Blackburn QC

Rachel Toney

2

Notes

The “prevention principle” and liquidated damages1. A convenient summary of the “prevention principle” is to be found in the judgment

of Jackson J (as he then was) in Multiplex v Honeywell 1, namely “the essence of the prevention principle is that the promisee cannot insist upon the performance of an obligation which he has prevented the promisor from performing. In the field of construction law, one consequence of the prevention principle is that the employer cannot hold the contractor to a specified completion date, if the employer has by act or omission prevented the contractor from completing by that date. Instead, time becomes at large and the obligation to complete by the specified date is replaced by an implied obligation to complete within a reasonable time. The same principle applies as between main contractor and sub-contractor. It is in order to avoid the operation of the prevention principle that many construction contracts and sub-contracts include provisions for extensions of time. Thus, it can be seen that extension of time clauses exist for the protection of both parties to a construction contract or sub-contract”.

2. Curtis 2 refers to an “often overlooked principle” relevant to liquidated damages clauses in building contracts as being that these are subject to rules protecting the builder/contractor from the consequences of delay caused by the buyer/employer: “unless the contract provides, expressly or impliedly, that time for completion will be extended in such circumstances, a long line of English decisions commencing with Holme v Guppy (1838) holds that the buyer/employer is precluded from claiming any liquidated damages whatsoever [emphasis] where his conduct has in fact delayed the completion of the contract works.”

3. As held by Vaughan-Williams L.J. in the Edwardian English case of Wells v Army & Navy (1903) Construction Law Year Book Vol 4, 65 CA at 69-70 “In the contract one finds the time limited within which [C] is to do his work. This means, not only that he is to do it within that time but it means also that he is to have that time within which to do it”.

4. Curtis goes on to state as follows: “Thus, in Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1971), a non-marine construction case, Salmon LJ held that: “if the employer wishes to recover liquidated damages for failure by the contractors to complete on time in spite of the fact that some of the delay is due to the employer’s own breach of contract, then the extension of time clause should provide, expressly or by necessary inference, for an extension of time on account of such a fault or breach on the part of the employer”.

5. In a ship repair case (The Cape Hatteras 3), the repair contract provided for liquidated damages in the event of delay in redelivery of the vessel beyond a specified date. The completion of the works was in part held up by the shipowners’ decision not to permit the repairer to deliver the vessel’s crankshaft to a subcontractor for grinding and polishing. Staughton J held that the repairers were in these circumstances wholly discharged from any liability in liquidated damages for delay. It was unnecessary to undertake any investigation of the delay to establish how far this had been caused by the shipowners’ conduct because: “the principle established by the authorities, that no liquidated damages for delay can be claimed if completion was in part delayed by conduct of the employer, is applicable in the present case. Had the parties wished to avoid that result, they could and should have inserted in the contract a term that the agreed date for completion should be extended in the event of delay caused by [the shipowners]. 4” The Court or Tribunal will have to consider whether there was any delay caused by the conduct of the employer (or the purchaser) 5.

1 [2007] B.L.R. 195.

2 4th Edition at p65

3 [1982] 1 Lloyd’s Rep 518

4 Staughton J at p526

5 See Staughton J at 527

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6. The effects of the principle have usefully been summarised 6 as follows: “[D] will lose the right to claim liquidated damages if some of the delay is due to its own, employees’, or agents’ defaults unless: (1) the extension of time clause, strictly construed, allows for extensions to be granted for delays caused by acts, or defaults of the owner; and (2) an extension has been validly granted thereunder. This will be the case even if [D’s] delays form only part of the total delay – the court will not seek to apportion delay, at least when considered the enforceability of the liquidated damages clause”.

7. Where no such provision for an extension is included in the contract and the works are delayed by the purchaser, the builder is only required to complete the construction of the vessel within a reasonable time. If he fails to do so, the purchaser is entitled to claim damages for breach of such obligation but will be obliged to prove his loss in the normal manner. He will not, however, be limited in such circumstances by the provisions of the liquidated damages clause.

8. It is also clear that it is not necessary that the employer’s conduct should constitute a breach of contract 7. The principle will equally come into play where the employer exercises a right to order extra works without permitting further time for the completion of the contract. However, Curtis 8 suggests that in the case of, for example, an SAJ Form of contract, the rule in Holme v Guppy will not be invoked merely by reason of the purchaser’s exercise of his right to call for modifications to the specification because Article V.1 of the SAJ Form specifically permits the builder to require that the Delivery Date be extended in such circumstances.

9. In summary, therefore, the position appears to be that if the contract requires completion by a stated date but the builder is prevented from completing by that date as a consequence of an event for which the purchaser is responsible, the builder is released from the obligation to pay any liquidated damages unless the contract provides for an extension of time to take into account the relevant delay 9. The key point which emerges from the authorities is whether the relevant build contract provides for an extension of time to take into account the relevant delay caused by the purchaser.

10. So, by way of example, if the builder were able to show that any delay was caused by the breach of the purchaser and that breach/conduct was not covered by the Permissible Delay provisions of the contract, then it would appear that the recovery of liquidated damages would be precluded and the purchaser would have to establish that the builder had failed to complete the construction of the vessel within a reasonable time, and would have to prove his loss in the normal manner. It should be borne in mind that there are authorities which indicated that insofar as the extension of time clause is ambiguous (i.e. does it “bite” or doesn’t it?), it should be construed in favour of the builder: see the discussion in Pickavance at para 6-119 referring to Multiplex v Honeywell. In the latter case, Jackson J went on to state that this proposition should be treated with care, and that in so far as an extension of time clause is ambiguous, the court should lean in favour of a construction which makes the contract work.

11. In Adyard Abu Dhabi v SD Marine Services 10, the Defendant had engaged the Claimant yard to build a number of ships for the UK Government. The contracts required the vessels to satisfy the requirements of the UK Maritime & Coastguard Agency and the relevant safety code for special purpose ships and included a right on the Defendant’s part to rescind in the event that two of the vessels were not ready

6 D. Jones “Can prevention be cured by time bars?” (2009) Society of Construction Law. See Pickavance para 6-122

7 As Jackson J said in Multiplex v Honeywell at p56 “actions by [D] which are perfectly legitimate under a construction contract may still be characterised as prevention, if those actions cause delay beyond the contractual completion date”.

8 4th Ed at page 70

9 Even if C would have been unable to complete on time in the absence of a delay by D, the liquidated damages clause will still cease to apply if D is responsible for some of the delay: SMK Cabinets v Hili Modern Electrics Pty [1984] V.R. 391 at p398

10 [2011] EWHC 848

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for sea trials by agreed dates. The vessels were not ready in time and the Defendant purported to exercise its right to rescind. Under the agreement, unless the builder commenced proceedings it was obliged to refund to the Defendant all instalments previously paid. The builder commenced proceedings and the Court had to determine whether the Defendant had been entitled to rescind. The builder did not dispute that the vessels were incomplete, but contended, inter alia, that the purchaser was not entitled to cancel on the grounds that its acts had prevented their completion of the vessels for sea trials because it had been delayed by various new design items imposed by the Agency’s safety requirements or the Defendants’ instructions. The Defendant argued that the design items were not variations, and even if they had been variations they had not caused the delay since the builder had fallen behind over a year earlier and had failed to comply with notice requirements for seeking an extension of time for any adjustments in accordance with the terms of the contract. The contracts included a detailed mechanism under which changes in the regulatory regime would be addressed. In essence, if such a change occurred during the construction period, the purchaser could choose either (i) to agree to “reasonable adjustments” required by the shipbuilder to the contract price, completion date and other terms of the contract in which case the relevant modification would be implemented or (ii) to instruct the shipbuilder “otherwise” i.e. not to effect the modification. However, the contracts made no specific provision for the situation in which, because it disagreed with the shipbuilder’s request for an extension of time, the purchaser did nothing at all. It was these circumstances i.e. the purchaser’s failure to decide promptly whether or not to implement the modification, that the shipbuilder contended had delayed the completion of the vessels and had brought the “prevention principle” into play, namely, that the contract did not provide any mechanism for an extension of time if there was no agreement to an adjustment. On this basis the shipbuilder contended that the purchaser’s cancellations were premature and unlawful.

12. The High Court accepted the argument that the contracts did in fact contain provisions entitling the shipbuilder to an extension of time and that the prevention principle could not therefore apply. Hamblen J based his decision not upon the terms of the contracts dealing with modifications, but on its Permissible Delay provisions, which contained customary language allowing the shipbuilder to claim extensions of time for force majeure events such as wars, strikes, “and any other delays of a nature which under the terms of this contract permits [sic] postponement of the Delivery Date”. In these circumstances, the judge held that, subject to providing to the purchaser timely notices of delay (which the shipbuilder had failed to do), the shipbuilder would in principle have been entitled to an extension of time to cover the period of the purchaser’s “indecision”: the existence of this potential remedy displaced the operation of the prevention principle. Curtis describes this conclusion as “surprising”11 :

“...the provisions of most shipbuilding contracts dealing with modifications and force majeure delay “generally operate separately” and any linkage between the two is not obvious. Furthermore, other than force majeure circumstances, Permissible Delay meant (as in most shipbuilding contracts) delays which “under the terms of th[e] Contract” permit extension of time, and the modifications clause did not contain provisions permitting an extension of time in such circumstances – the fact that, as the judge noted, “[the modification clause] permits the parties to agree adjustments to the Delivery Date” clearly did not generate any express right to an extension of time in circumstances in which agreement had not been reached. Finally, while there is obvious logic in requiring that “true” force majeure notices should promptly be given by the shipbuilder to the purchaser, it is submitted that there is no good commercial reason why the shipbuilder should be required to give notices of both the commencement and cessation of a delay which results from the parties’ joint failure to conclude ongoing negotiations between them”.

11 page 67

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13. The judge (Hamblen J) acknowledged that the contract was not particularly well drafted and that there was a degree of ambiguity. He also referred to the concerns expressed by Colman J in an earlier case 12 that the operation of the prevention principle might mean that the existence of a “trivial variation” could cause the employer (or purchaser) to forfeit a significant entitlement to liquidated damages for delay. Curtis regards the decision as “harsh” from the perspective of the shipbuilder given that the risks generally of “compulsory” modifications affecting the vessel’s construction were clearly agreed to be borne by the purchaser. We tend to agree.

14. Hamblen J went on to consider the issues of causation which would have arisen if Adyard had been entitled to rely on the prevention principle, and he referred in particular to Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board 13where Lord Denning stated that it was well settled in building contracts and in other contracts, when there is a stipulation for work to be done in a limited time, if the other party by his conduct, renders it impossible or impracticable for the other party to do his work within the stipulated time, then the one whose conduct caused the trouble can no longer insist upon the strict adherence to the time stated, and cannot claim liquidated damages. Hamblen J emphasised that the conduct or act of prevention must actually prevent the contractor from carrying out the works within the contract period, or, in other words, must cause some actual delay.

15. In Jerram Falkus Construction v Fenice Investments 14 (a case decided in July 2011), Mr Justice Coulson held that the prevention principle did not apply to cases of concurrent delay. Coulson J referred (at paragraph 49) to the Adyard case, and went on (paragraph 50) to state that “... Hamblen J’s analysis indicated that, if there were two concurrent causes of delay, one which was the contractor’s responsibility, and one which was said to trigger the prevention principle, the principle would not in fact be triggered because the contractor could not show that the employer’s conduct made it impossible for him to complete within the stipulated time. The existence of a delay for which the contractor is responsible, covering the same period of delay which was caused by an act of prevention, would mean that the employer had not prevented actual completion. Throughout his analysis, Hamblen J stressed the importance of the contractor proving delay to the actual progress of the work as a result of the alleged act of prevention.” Coulson J concluded (at para 52) that “for the prevention principle to apply, the contractor must be able to demonstrate that the employer’s acts or omissions have prevented the contractor from achieving an earlier completion date and that, if that earlier completion date would not have been achieved anyway, because of concurrent delays caused by the contractor’s own default, the prevention principle will not apply”. 15

16. Concurrent delay is discussed further below.

“Prevention” and accrued right to liquidated damages?17. It is worth considering what the position is in relation to liquidated damages, where a

builder has failed to meet the agreed delivery date (through no fault of the purchaser) and the purchaser then requests modifications after that originally agreed delivery date. Do the later acts of alleged “prevention” 16 on the part of the purchaser affect the liquidated damages said to have accrued up until the date of the “prevention” and to which the purchaser would otherwise be entitled as a result of the builder’s failure to complete on time?

12 Balfour Beatty Building v Chestermount Properties Ltd (1993) 62 B.L.R. 1

13 [1973] 1WLR 601, 607

14 [2011] EWHC 1935 (TCC)

15 See also Curtis at page 153 footnote 25.

16 In SMK Cabinets v Hili Brooking J said that what constitutes an act of prevention “must accommodate the case of the ordering of extras, whether or not in the exercise of power conferred by the contract” unless the contract “makes it clear that [C] is undertaking to complete by the due date notwithstanding extras of other variations”. (see Picka-vance para 6-127)

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18. The answer, according to the Australian case of SMK Cabinets v Hili Modern Electrics Pty [1984] V. R. 391, is “no”. The Court concluded that if the contractor had already breached the completion date due to no fault of the defendant, then the defendant would be entitled to liquidated damages up until any act of prevention of the defendant. The ordering of variations after the completion date had passed (where there was no power in the contract to extend for that reason) only served to prevent the defendant from taking liquidated damages which had accrued after the date of instruction of the variation but did not upset the parties’ contractual rights and obligations accruing prior to the date upon which the instruction was given:

“...As with two contributing causes of delay both operating before the date from which liquidated damages are to accrue, so with a cause of delay which operates only after that date, it can be argued that the necessary causal connection is lacking. When a date has come and gone, how can a requirement of additional or different work prevent completion by that date? The obligation is to complete by a certain date (I ignore the seven days’ grace admitted to be allowed by the present clause); the subsequent ordering of extras cannot have prevented the contractor’s performance of that obligation. Such is the argument. But....the consequences to the contractor of that failure depend on the number of days during which the failure continues: the provision is for graduated sums, the obligation being to pay a larger sum for every day by which completion is delayed.....whatever be the juridical basis of prevention, it is grounded upon considerations of fairness and reasonableness which are operative whether the delaying variation is ordered before or after the due date for completion. Hudson, Building and Engineering Contracts, 10th Ed p646 treats the question as open, but what little authority there is supports the view which I would adopt as a matter of principle, namely that the ordering of variations after the due date which must substantially delay completion will, unless the contract provides otherwise, and in the absence of an applicable extension of time clause, disable the proprietor from recovering or retaining liquidated damages which might otherwise have accrued after the giving of the order, the employer’s right in respect of amounts that have already accrued by way of liquidated damages not being affected. In Anderson v Tuapeka County Council (1900) 19 N.Z.L.R 1 Stout C.J. (with whose judgment Williams and Conolly JJ agreed) at p 11, and Martin J at p21 expressed the opinion that the ordering of extras in September after the due date for completion “would set the penalties at large from September”; Martin J alone said in unequivocal terms that the right to recover sums that had already accrued would not be affected. These observations were applied by Williams J in Baskett v Bendigo Gold Dredging Co Ltd (1902) 21 N.Z.L.R. 166 at p 174-175, where it was held that, assuming that there had been no previous act of prevention, liquidated damages need not be allowed by the contractor from the time when, about one month after the due date for completion, delay was occasioned by the ordering of extra work” 17.

19. However, it should be noted, as set out in the latest edition of Hudson at paragraph 6-037, that in the SMK case, it is probably the dictum of Martin J which should be relied on in any argument on this type of point, because in SMK , there was in fact no extension of time clause for variations at all so that any variation ordered, whether before or after the contract or extended completion date, would inevitably have invalidated the liquidated damages clause on prevention grounds!

Concurrent delay20. As set out in Hudson at para 6-059, there has been substantial academic and

professional debate about how to deal with concurrent delay when assessing extensions of time (and prolongation costs). What is the legal position if there are two events which both caused the same period of delay to the completion of the work in the sense that the delaying effect of both events is felt at the same time, and one

17 p397-398

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event is a “Relevant Event” in the sense that the contract provides the builder with the right to an extension of time, but the other does not so entitle the builder?

21. A simple example which is often referred to in non-marine construction cases is where no work is possible on site for a week not only because of inclement weather, (a relevant event which under the contract entitles the contractor to an extension of time) but also because the contractor has a labour shortage (not a relevant event) and its failure to work during that week is likely to delay the works beyond the completion date by one week. As stated in Hudson, in extension of time cases, the essence of such a claim, both in regard to liability and quantum, must be that but for the extension of time event relied on, the Contractor would as a fact have completed earlier, by the amount of the claimed extension period, than their eventual actual completion date so (with the onus of proof on the Contractor) reducing their liquidated damages to that extent.

22. There are a number of English authorities which state that in circumstances where there are concurrent causes of delay, one of which is a relevant event and the other at the contractor’s risk, the Contractor will be entitled to an extension of time.

23. As discussed by Colman J in Balfour Beatty v Chestermount Properties Ltd 18, the issue is whether the events in question had any and, if so, what effect on the completion of the works. The contract was for the construction of the shell and core of an office block, and the completion date was 12 September 1989. The contractor did not complete by that date for reasons which were his risk under the contract. By January 1990, the contractor was expected to finish (for the same reasons) in July 1990. Between February and July 1990, while the contractor was in culpable delay, the employer instructed variations. The contractor argued that he was entitled to an extension of time for completion by the period required to carry out the variations starting from the date of the instructions (“the gross basis”), i.e. 2 months from February 1990. The employer contended that the contractor was entitled to an extension for the period required to carry out the variations added on to the completion date as it then was (“the net basis”), i.e. the completion date should be extended to 12 November 1989. Colman J found for the employer and held that the purpose of the power to grant an extension of time was to fix the period of time by which the period of time available for completion ought to be extended, having regard to the incidence of the relevant events, measured by the standard of what is fair and reasonable. At the foundation of the code was the obligation of the contractor to complete the works within the contractual period terminating at the completion date and on failure to do so to pay liquidated damages. But superimposed on this regime was a system of allocation of risk. If events occur which are non-contractor’s risk events and those events cause the progress of the works to be delayed, the contract provides for the completion date to be adjusted to reflect the period of delay so caused. The underlying objective is to arrive at the aggregate period of time within which the contract works as ultimately defined ought to have been completed having regard to the incidence of non-contractor’s risk events. The completion date as adjusted retrospectively was not the date by which the Contractor ought to have achieved or ought in future to achieve practical completion, but the date which marks the end of the total number of working days starting from the date of possession within which the Contractor ought fairly and reasonably to have completed the works. The judge went on to make it clear that delay to the completion date must be assessed by reference to the progress of the works. (As discussed in Hudson at para 6-060, in allocating risks as between themselves, the parties may be taken to have recognised that any one delay or period of delay might well be attributable to more than one cause, but to have agreed nevertheless that provided one of these causes affords grounds for relief under the contract, then the Contractor should have such relief.)

18 (1993) 62 B.L.R. 1

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24. In Henry Boot Construction v Malmaison Hotel 19 Dyson J (as he then was) also referred to the Balfour Beatty case and agreed that it was a question of fact in any given case whether a relevant event has caused or is likely to cause delay to the works beyond the completion date. A defendant to a claim for an extension could argue that the alleged relevant event was not causative, and/or point to the true cause of the delay. In that case, the parties had agreed that if there were two concurrent causes of delay, one was a relevant event and the other was not, the Contractor would be entitled to an extension of time for the period of delay caused by the relevant event, notwithstanding the concurrent effect of the other event, and this was not the subject of adverse comment from the judge. A useful definition of concurrent delay in this context was provided by John Marrin QC in his article Concurrent Delay 20, namely “a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency.”.

25. A stricter or narrower approach to concurrent delay was taken by Judge Richard Seymour in Royal Brompton Hospital NHS Trust v Hammond 21. He concluded that if the Contractor had been delayed in completing the works by matters for which it bore the contractual risk, and by relevant events, then it would be entitled to an extension of time by reason of the occurrence of the relevant event(s). The judge indicated that by his reference to events operating concurrently, he meant truly concurrent delaying events and not to the situation where, for example, work was already delayed by a Contractor default, and a relevant event then occurs which, had the Contractor not been delayed, would have caused them delay but which, because of the existing delay, made no difference. In that latter case, Judge Richard Seymour considered that even though there is a relevant event, the completion of the works was not likely to be delayed thereby beyond the completion date and the relevant event simply has no effect on the completion date. That situation obviously needs to be distinguished from a situation in which, as it were, the works are proceeding in a regular fashion and on programme, when two things happen, either of which, had it happened on its own, would have caused delay, and one is a relevant event, while the other is not. In such circumstances, there is real concurrency. The judgment of Judge Seymour therefore made it clear that there is only concurrency if both events in fact cause delay to the progress of the works and the delaying effect of the two events is felt at the same time. The Court of Appeal refused permission to appeal.

26. In the Scottish case, City Inn v Shepherd Construction 22, (involving clause 25 of the JCT standard form), the judge at first instance held that where there was concurrency between a relevant event and a Contractor default, in the sense that both existed simultaneously, regardless of which started first, it may be appropriate to apportion responsibility for the delay between the two causes, adopting an approach broadly similar to the apportionment of liability on account of contributory negligence, i.e. based on considerations of culpability and causative potency. On appeal in the Inner House of the Court of Session, the majority accepted that the issue of whether a relevant event causes delay is to be assessed by reference to the progress of the works as a whole, and they recognised the relevance of considering and establishing causation.

27. For example, Lord Osborne summarised the position as being that, firstly, before any claim for an extension of time can succeed, it must plainly be shown that a relevant event is a cause of delay and that the completion of the works is likely to be delayed thereby or has in fact been delayed thereby. Secondly, the decision as to whether the relevant event possesses such a causative effect is an issue of fact which is to be resolved by the application of principles of common-sense. Thirdly, the decision-maker (under the contract) is at liberty to decide an issue of causation on the basis of

19 (1999) 70 Con. L.R. 32

20 (2002) 18 Const LJ No 6 436

21 (2001) 76 Con LR 148

22 [2010] B.L.R 437

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any factual evidence acceptable to him, and while a critical path analysis, if shown to be soundly based, may be of assistance, the absence of one does not mean that the claim for an extension must fail. Fourthly, if a dominant cause can be identified as the cause of some particular delay in the completion of the works, effect will be given to that by leaving out of account any cause or causes which are not material. Depending on whether or not the dominant cause is a relevant event, the claim for an extension will or will not succeed. The editors of Hudson indicated at para 6-061 of the main work that this approach of Lord Osborne reflects English law as well. However, Lord Osborne went on to uphold the first instance decision that where a situation exists in which two causes are operative, it may be appropriate to apportion, and the editors of Hudson concluded (in the main work) that an English Court would not take that approach.

28. However, in a dissenting judgment, Lord Carloway suggested that it was not necessary to show that the relevant event was an operative cause of delay to the progress of the works. He said that delay caused by the contractor was irrelevant so far as the contractual exercise is concerned, that exercise does not involve an analysis of competing causes, but rather it involves a prediction of a Completion Date, by looking at the relevant event and the effect it would have had on the original (or already altered) Completion Date. If a relevant event occurs (no matter when), the fact that the Works would have been delayed in any event because of a contractor default remains irrelevant. This view is not in line with the above English authorities in relation to extensions of time under the JCT form and similar contracts which are clear that it must be established that the relevant event is at least a concurrent cause of actual delay to the progress of the works. As set out in the Second Supplement to Hudson (November 2012) at paragraph 6-060, these English authorities have now been followed in a number of recent decisions, including the Adyard case referred to above, and in the recent decision of Akenhead J in Walter Lilly Co Ltd v Mackay 23

29. In the Adyard case, the builder had to admit that no additional delay (i.e. additional to the already existing “irretrievable critical delay”) had been caused by the variations, and sought to rely upon Lord Carloway’s minority opinion in the City Inn case to argue that the alleged variations justified an EOT regardless of existing delays and regardless of whether the variations had any actual impact on the progress of the works. Hamblen J applied the above English cases, he found that Lord Carloway’s approach did not reflect English law, and he accepted Lord Osborne’s analysis save for the apportionment issue which Hamblen J again rejected from an English law point of view. Mr Justice Hamblen stated at paragraphs 285-286 of his Judgment as follows:

“Adyard submitted that the essential point, whether analysed as a matter of “concurrency” or “prevention” is that the effect of the Buyer’s risk event has to be measured against the contractual completion date and that this does not require any analysis of competing causes of delay for which the Builder might be responsible. It submitted that in cases such as the present where the Builder’s obligations to progress the works are defined by reference to particular contractual milestones, rather than any programmes, that this approach should be followed. City Inn was an extension of time rather than a prevention principle case, but in so far as Lord Carloway was suggesting in his judgment that it is not necessary to show that the relevant event is an operative cause of delay to the progress of the works, it does not reflect English law. As set out above, the English law authorities in relation to extensions of time under the JCT form and similar contracts are clear that it must be established that the relevant event is at least a concurrent cause 24 of actual delay to the progress of the work”

30. Mr Justice Hamblen concluded that Adyard’s approach was “wrong as a matter of both principle and authority. It [was] also contrary to common sense...” (para 263).

23 (2012) EWHC 1773 (TCC), and see also Curtis at page 152.

24 Hamblen J referred to “a useful working definition of concurrent delay” as “a period of project overrun which is caused by two or more effective causes of delay which are of approximate equal causative potency” – as set out in the article “Concurrent Delay” by John Marrin QC (2002) 18 Const. LJ No 6 436 referred to above.

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Hamblen J agreed with HHJ Seymour Q.C. in Royal Brompton Hospital NHS Trust v Hammond (No 7) (2001) 76 Con LR 148 that there is only concurrency if both

events (one, a “relevant event” and the other not) in fact cause delay to the progress

of the works and the delaying effect of the two events is felt at the same time. That

situation is to be distinguished from the situation where the “relevant event” has no

effect upon the completion date at all (e.g. in a situation in which work already being

delayed because the contractor has, for example, difficulty in obtaining sufficient

labour, an event then occurs which is a relevant event and which, had the contractor

not been delayed, would have caused him to be delayed, but which in fact, by reason

of the existing delay, made no difference).

31. In De Beers UK Ltd v Atos Origin It Services UK Ltd [2010] EWHC 3276 (TCC),

Edwards-Stuart J found that both Atos (the contractor) and De Beers (the commissioning

party) were responsible for critical delays to completion that were operating

concurrently, and that either delay was sufficient on its own to delay completion 25. A

full extension of time was granted in respect of the Atos delay, and the judge stated (at

paragraph 177) as follows:

“The general rule in construction and engineering cases is that where there is

concurrent delay to completion caused by matters for which both employer and

contractor are responsible, the contractor is entitled to an extension of time but he

cannot recover in respect of the loss caused by the delay. In the case of the former,

this is because the rule where delay is caused by the employer is that not only must

the contractor complete within a reasonable time but also the contractor must have

a reasonable time within which to complete. It therefore does not matter if the

contractor would have been unable to complete by the contractual completion date

if there had been no breaches of contract by the employer (or other events which

entitled the contractor to an extension of time), because he is entitled to have the time

within which to complete which the contract allows or which the employer’s conduct

has made reasonably necessary.”

32. Akenhead J referred to both Adyard and De Beers in the Walter Lilly case, and

concluded (paragraph 370) that although of persuasive weight, the City Inn case was

inapplicable in England: “I am clearly of the view that, where there is an extension of time clause such as that agreed upon in this case and where delay is caused by two or more effective causes, one of which entitles the contractor to an extension of time as being a Relevant Event, the Contractor is entitled to a full extension of time....The fact that the Architect has to award a “fair and reasonable” extension does not imply that there should be some apportionment in the case of concurrent delays. The test is primarily a causation one...”.

25 see para 176

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Elizabeth Blackburn QCCall: 1978QC: 1998

2008 - Bencher of the Middle Temple2009 - LOF Arbitrator

BA (Hons) - University of Manchester

[email protected]@aol.com

Elizabeth Blackburn QC has been in practice as a specialist shipping and maritime barrister at the Commercial and Admiralty Bar since 1980 and took silk in 1998. Her range of work covers arbitration, shipping and the international carriage of goods; international trade and associated finance; surety, guarantee and performance bond disputes; marine insurance; P&I Club issues; marine pollution; collision, salvage and towage disputes; shipbuilding, particularly superyacht construction, damage to marine/off shore installations, maritime limitation of liability, maritime International Law and Treaty Obligations; and maritime heritage and wreck law. She has particular expertise in large scale casualty work where there are related conflict of laws and jurisdictional issues, and complex expert issues relating to naval architecture, hydrography, geo-technology and meteorology.

She was part of the UK Delegation at the May 2003 IOPC Supplementary Fund Diplomatic Conference, and has been involved in the finalising and implementation of the Nairobi Wreck Removal Convention 2007. She is also the legal member of the Department of Culture’s Advisory Committee on Historic Wreck Sites and has particular expertise in maritime heritage issues and the law of wreck.

Elizabeth Blackburn also has a significant practice as an ICC Arbitrator, specialising in commercial contracts, such as large scale supply contracts in the energy section, shipbuilding contracts and international trade disputes. She has been appointed as both Chairman and sole Arbitrator in a number of such disputes by the ICC International Court of Arbitration on the recommendation of the UK National Committee. She is also a LOF Salvage Arbitrator.

Elizabeth is a Member of the Executive Committee of the British Maritime Law Association and chairs the Pollution Law Sub Committee; a Member of the ICC UK Transport Committee; a member of the Commercial Bar Association; and a Supporting Member of the London Maritime Arbitrators’ Association. Elizabeth Blackburn is a Bencher of the Middle Temple and is also actively involved in the London Shipping Law Centre and is the Chair of the Education Sub-Committee and a member of the Steering Committee.

She is consistently recommended as a leading shipping silk in both The Legal 500 and Chambers & Partners:

Elizabeth Blackburn QC is lauded by commentators as “excellent for pollution and jurisdictional matters,” although peers concede that she is strong across the board, noting that there are no perceptible gaps in her broad shipping and commodities expertise. She advised on the complex commercial and salvage issues which stemmed from the grounding of the ‘MSC Chitra’ in Mumbai. (Chambers & Partners 2013)

Elizabeth Blackburn QC is ‘excellent for pollution and jurisdictional matters’ (Legal 500 2012)

Elizabeth Blackburn QC is considered to be the go-to silk for any pollution-related matter. She impresses peers with her “phenomenal work ethic” and “deep knowledge base.” She is also highly respected for her expertise in salvage and collision cases. (Chambers & Partners 2012)






Elizabeth Blackburn QC is ‘a heroine in the pollution cases sector’, and is ‘proactive and creative in her advice,

always responds very quickly and is a delight to deal with’. (Legal 500 2011)

Elizabeth Blackburn QC is particularly strong on wet shipping where she has a reputation for excellence when

handling technical salvage and collision matters. “Utterly dedicated and with a detailed knowledge of the law, she

is everything a QC should be.” (Chambers & Partners 2011)

Elizabeth Blackburn QC is ‘a heroine in the pollution cases sector’, and is ‘proactive and creative in her advice,

always responds very quickly and is a delight to deal with’. (Legal 500 2011)

“An exceedingly experienced and accomplished admiralty practitioner,” who is “a fantastic and very pleasant silk to

work with.” Blackburn once again demonstrated her “genuine knowledge of the operation and handling of ships”

when undertaking the ‘A Turtle’ case, concerning the loss of a semi-submersible drilling platform in the South

Atlantic. (Chambers & Partners 2010)

Beloved by solicitors for ‘always having the facts at her fingertips,’ she is also an expert on marine cultural heritage

issues. (Chambers & Partners 2009)

Arbitration:

� International maritime and commercial arbitration � Lloyds Form Salvage Arbitration � ICC arbitration

International Trade & Finance:

� FOB/CIF sale contracts � Documentary credits & associated finance. � Surety, guarantee and performance bond disputes.

Insurance and Reinsurance:

� Disputes as to coverage and non-disclosure � Construction of policies � P&I Club issues

Shipping:

� Charterparty and bill of lading disputes, unseaworthiness claims; unsafe port disputes

� General Average � Collision, Salvage, Towage disputes � The Law of Wreck � Shipbuilding and shiprepair disputes

� Damage to marine/offshore installations � Marine limitation of Liability � EC Shipping Law

Marine Pollution:

� CLC and IOPC Fund Compensation and Supplementary Compensation Fund

� Bunker Liability � Hazardous and Noxious Substances � Intervention Convention 1969 and the 1973 Protocol

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� International Law: United Nations Convention on the Law of the Sea 1982

Maritime Heritage:

� European Convention on the Protection of the Archaelogical Heritage (Valletta Convention, and the UNESCO Convention on Underwater Cultural Heritage 2001

� Protection of Wrecks Act 1973, Ancient Monuments and Archaelogical Areas Act 1979; and Protection of Military Remains Act 1986

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The **** (2010 and ongoing): acting for the Purchaser of a multi-million euro superyacht in a major shipbuilding arbitration with disputes involving contractual interpretation; alleged costs over runs; time delays; and disputes relating to alleged modifications.

The MSC CHITRA (2011): advising the Owners of the MSC Chitra in this major maritime casualty in India.

The NORDLAKE: INS VINDHYAGIRI (2011): advising the Owners of the Nordlake in another major maritime casualty in India.

The OLIVA [2011]: advising the Owners in a major environmental casualty leading from a grounding in St Helena.






The KAMINESAN: HYUNDAI NO 105: MAMITSA (2004 to 2011): continuing to advise the owners of the VLCC KAMINESAN in this major tri-partite collision in the Singapore Strait with claims in excess of US$100 million and associated ongoing limitation action in Singapore brought under the 1957 Limitation Convention. This was the largest casualty worldwide in 2004 and there are presently 6 ongoing actions in Singapore.

*** v *** (2011): chairing ICC arbitration arising out of the supply of an off-gas treatment plant in one of the Baltic States.

The ROCKNES (2009 to 2011): complicated salvage case dealing with the valuation of a rock dumping vessel and the assignment of an Article 13 award to a SCOPIC insurer.

The *** (2010): advising in relation to various insurance and contractual issues arising out of a collision with an offshore FPSO Vessel leading to substantial losses of production.

Micoperi 30 (2008): substantial Commercial Court dispute relating to the pulling over of an offshore structure during installation in the Turkish Akcakoca Fields, acting for the owners and operators of the field. Expert evidence was wide ranging, including offshore engineering and construction issues, the safe working practices of the offshore industry and the insurances available in the market to cover offshore construction projects and well drilling;

Superyacht dispute (2008): advising builders on and preparing for a mediation relating to delay, change of specification and alleged breach of confidentiality issues in Superyacht dispute during Spring 2008.

A Turtle (2008) EWHC 3034; [2009] 1 Lloyd’s Rep 177: acting for Tugowners in this key decision on “knock for knock” clauses.

The Sea Angel; Tasman Spirit [2007] 2 Lloyd’s Rep 517 (2003 to 2007): alleged frustration of time charterparty arising out of the salvage of this large scale pollution casualty in Pakistan, acting for the successful owners of the SEA ANGEL at first instance and in the Court of Appeal.

The Cristoforo Colombo (2004 to 2007): acting for shipowners in this major grounding casaulty in the Sakhalin area of Russia. Complex expert issues relating to naval architecture, hydrography, meteorology and geo-technology.

Grenco BV v J&E Hall Limited, Jackstone Froster Limited (2005/7): substantial Commercial Court claim for breach of contract and/or negligence concerning amongst other things the design and supply of aluminium freezer plates. Numerous points arising for consideration and advice in relation to expert issues of plate susceptibility to corrosion, corrosion inhibitors, design and integrity of marine freezer systems, weld procedures and general causation.

The Tricolor and Kariba (2003): major maritime casualty and wreck removal in English Channel, involving jurisdictional and worldwide limitation issues, acting for Owners of KARIBA, claims in excess of US$100 million.

Princesca Oceanica v Merrion Insurance (2003): Commercial Court trial concerning a series of performance bonds and reinsurance cut through endorsements; worldwide freezing orders leading to committal and sequestration of directors’ assets.

The Palvia (2003): advising on potential claims for breach of Article 10EC via European Commission in relation to national state breaches of recent EC Directives and Regulations on maritime safety within the EC.

The Ievoli Sun : (2000 to 2003): total loss of chemical carrier in the English Channel, carrying bunkers, hazardous and noxious substances. Acting for Shipowners.

The Gudermes and the St Jacques II: [2003] 1 Lloyd’s Rep 203: collision and limitation action involving laden tanker in English Channel in April 2001. First case in which a claim to limit under the 1976 Limitation Convention was allowed to proceed to trial.

The Nakhodka (1997 to 2002): total loss of laden tanker, leading to major maritime disaster in Japan, acting for shipowners. Claim by the IOPC Fund in excess of £189 million; involved litigation in both Japan and UK. Along with the PRESTIGE and ERIKA (in which Elizabeth has also advised), the NAKHODKA is one of the largest oil pollution cases ever dealt with by the IOPC Fund. Also raised issues on the international law of the Sea, treaty obligations, carriage of goods and marine insurance.



Rachel Toney: Shipping & Trade

Rachel Toney: Commercial and Employment profiles also available



Before commencing her career at the Bar, she read Law with Legal Studies in Europe at Oxford University and spent a year in Konstanz reading German Law before completing her LLM (in German) in comparative law.

Rachel’s wide-ranging commercial practice includes all aspects of international trade, shipping and maritime work (“dry” shipping – all aspects including a wide variety of bills of lading/charterparty disputes, indemnity claims, Agency Agreement disputes, contamination and cargo claims; “wet” shipping/Admiralty claims, primarily collisions/breach of International Regulations including jurisdictional and procedural issues), contracts for the sale and carriage of goods together with insurance and re-insurance. Rachel is experienced in mediation as well as arbitration.

In March 2004 Rachel was appointed as Junior Counsel to the Crown – Panel C. She was promoted to Panel B in March 2008. In 2010 Rachel was appointed as a member of the Attorney General’s Panel of Special Advocates.

Rachel is recommended as a leading barrister for both Shipping & Commodities and Employment law in Chambers & Partners and the Legal 500, where she has been described as ‘outstanding’. They note:

Commentators say that Rachel Toney offers “more or less the complete package.” She allies charm to tenacity and is known for always giving clients a good run for their money. (Chambers & Partners 2013)

The “tenacious” Rachel Toney “has the complete package - pragmatism, intelligence and client skills,” sources say. Her practice covers a wide range of commercial disputes including international trade, shipping, sale and carriage of goods and insurance matters. (Chambers & Partners 2012)

...”a barrister with phenomenal attention to detail” (Chambers & Partners 2011)

Rachel Toney is a favourite junior at the set, whose practice covers both dry and wet matters. She impresses with her “ability to communicate legal detail at an understandable level,” and with her “good technical mind which allows her to assimilate complex information coming at her from different perspectives.” (Chambers & Partners 2011)

Rachel Toney ‘is very bright, and delivers no-nonsense advice’. (Legal 500 2009)

Shipping Cases:

Superyacht build - instructed on behalf of a (Respondent) Purchasing Company of multi-million Euro “superyacht” in relation to a dispute with the Builder which arose during construction of the “superyacht”. The dispute and issues between the parties concerned allegations regarding “changes and modifications”, late delivery of decisions, late supply, costs overruns and time delays. Rachel was heavily involved (as Junior Counsel) in preparations for the Preliminary Issues trial (LMAA arbitration) . This included detailed work with witnesses and a number of visits (as sole Counsel) to the foreign shipyard and Vessel whilst under construction (and to meet in conference with clients and foreign lawyers also advising in relation to the on-going dispute) and responsibility for preparation and presentation of the technical evidence. Further to the outcome of the Preliminary Issues Arbitration, Rachel became heavily involved in advising, drafting and general preparations in relation to the Defence of (and Counterclaim in relation to) the “Main (multi-million Euro) Claim” including detailed work with factual and expert witnesses.

Rachel ToneyCall: 1998

Junior Counsel to the Crown Panel BMember of the Attorney General’s Panel of Special Advocates

BA (Hons) (First Class) Christ Church, Oxford University

LLM Konstanz University, Germany

[email protected]







Superyacht brokerage agreement - Rachel is instructed on behalf of a purchaser of a multi-million Euro “superyacht” defending a substantial claim proceeding in (LMAA) arbitration for alleged losses and damage suffered as a result of an alleged wrongful repudiation of a written brokerage agreement and as a result of alleged breaches of the Respondent’s obligation of confidentiality arising under that agreement. Counterclaim arises out of various alleged breaches by the Claimant of clauses of the Agreement, fiduciary and other duties. There are complex legal issues in relation to the alleged breaches of confidentiality and breaches of fiduciary duties relating to the alleged receipt of “secret commissions”.

MC - Rachel is instructed on behalf of the Claimant insurers of a passenger cruise vessel in on-going Admiralty litigation against Transport for London in relation to an allision between the vessel and Westminster Bridge which is said to have caused considerable damage to (and the near loss of) the vessel on the Thames. In summary, the Claimant alleges that TfL had failed in their duties to maintain and properly repair the bridge and to ensure that the pier buttresses (and the relatively narrow low water channel through the arch) were sufficiently marked to enable vessels to transit safely (the Defendant denies any breach). The Defendant (TfL) alleges negligence on the part of the Master (which is denied). Complex expert issues as to structural integrity, maintenance and repair of the various parts of the bridge structures involved and engineering complexities vis-à-vis causation of damage to vessel in light of chosen method of buttress protection.

G and others and TC plc - Rachel is instructed on behalf of the insurers of a Thames Clipper in relation to an intended Admiralty action regarding a collision with (and alleged destruction of) a cutter. Multi-party advice in relation to liability and personal injury quantum.

S v Secretary of State for Defence - as part of her Attorney-General Panel work, Rachel is instructed on behalf of the Secretary of State for Defence advising in relation to an intended Admiralty claim for damages intimated by the insurers of a proposed Claimant in relation to an alleged allision which took place in the Eastern Solent.

“GS” - Rachel is instructed on behalf of Claimant Owners in relation to an LMAA Arbitration Charterparty dispute concerning shipment of an alleged dangerous cargo of bulk iron ore. Case also involves consideration of issues and argument in relation to legal principles concerning very recent Court of Appeal authority on demurrage time-bars.

Grenco BV v J & E Hall Limited, Jackstone Froster Limited & Others - Rachel acted as Junior Counsel on behalf of Defendant suppliers of vertical stack plate freezers for industrial use on land and on-board ocean-going vessels. Defending substantial claims for damages and loss of profits for breach of contract and/or negligence concerning amongst other things the design and supply of aluminium freezers. Numerous points arising for consideration and advice in relation to expert issues of plate susceptibility to corrosion, corrosion inhibitors, design and integrity of marine freezer systems, weld procedures and general causation and mitigation.

MV SEA CRESTA - Rachel acted as Junior Counsel on behalf of shippers and charterers defending claims brought by Owners for damages arising out of the carriage of a cargo of Direct Reduced Iron from Trinidad to Canada. Issues arising in relation to the carriage of alleged dangerous cargo, the use and/or suitability of Thermocouples for monitoring temperature changes and the seaworthiness of the vessel.

H v HMM - Rachel provided advice in relation to breaches of shipping Agency Agreement, jurisdiction and alleged breaches of the Commercial Agents Directive Regulations.

“Jack O Lantern” - Rachel was instructed on behalf of Claimant racing yacht Owner in relation to claim for damages arising out of alleged demasting during the course of the Round Britain and Ireland race.

“Lady Kathryn” - Rachel represented Claimant charterer at Arbitration alleging breaches of MYBA Charter Agreement and misrepresentations in relation to private charter of a luxury yacht.

“MV Gallant” - appeared on behalf of shipowners in German arbitration (Hamburg), in relation to charterparty dispute referred to arbitration subject to the Rules of the German Maritime Arbitrator’s Association.

Glencore International AG (and others) v Metro Trading International Inc, (and others) - multi-party complex litigation, conflict of laws, relevant rules of Fujairah and English law, title to blended/commingled oil and priorities, jurisdictional issues). Numerous interlocutory applications in relation to subsidiary claims including freezing injunction relief, second Junior Counsel and junior Counsel in relation to Phase 1 and Phase 2 of the litigation [2001] 1 Lloyd’s Rep 284 (Phase 1); appeared as Junior Counsel in Court of Appeal appealing first instance decision granting anti-suit injunction relief against shipowners [2002] EWCS Civ 524.

“The Great Peace” [2001] 151 NLJ 1696, [2002] 3 W.L.R. 1617 - instructed as Junior Counsel on behalf of salvors in the Court of Appeal in relation to claim for unpaid hire. Arguably, now the leading case on mistake. Court of Appeal did away with the equitable doctrine of common mistake overruling Solle v Butcher.







Voaden v Champion and Ors “The Baltic Surveyor” [2002] 1 Lloyd’s Rep. 623 - instructed as Junior Counsel to advise and appear on behalf of respondents in Court of Appeal. Quantum dispute in relation to sinking of appellants’ vessel.

Awards and Scholarships

Hardwicke Scholar (1998-1999)

Sir Thomas More Bursary (1998-1999)

Wolfson Scholar (1997-1998)

Exhibitioner at Christ Church (1994-1997)

Languages

German (fluent) & French (good working knowledge)

Education

1993-1997 Christ Church, Oxford University BA (Hons 1st Class)

Law with Legal Studies in Europe

Exhibitioner 1994-1997

1995-1996 Konstanz University, Germany, LLM (finalised December 1999)

German/Comparative law

1989-1993 Lutterworth Grammar School

GCSE, A-Levels and S-Levels (distinction)

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Documents

The Prevention Principle, Liquidated Damages and Concurrent Delays