Time at Large — When the Completion Obligation Is Lost

The prevention principle is one of the most powerful doctrines in construction contract law, and its consequence — time becoming ‘at large’ — is one of the most serious legal outcomes an employer can face. When time is at large, the employer loses the right to liquidated damages, the completion date becomes ineffective, and the contractor need only complete within a ‘reasonable time’. Understanding when time goes at large, and how to prevent it, is essential knowledge for anyone managing construction contracts.

The Problem

The prevention principle arises when the employer, by its own act or default, prevents the contractor from completing the works by the contract completion date. The classic examples in construction include: the employer fails to give possession of the site on time; the employer issues a significant volume of variations late in the programme; the employer provides critical design information so late that the original programme is no longer achievable; or the employer’s sub-contractors interfere with the works. In each case, the employer’s conduct makes it impossible — or at least significantly more difficult — for the contractor to meet the original completion date.

If the contract’s extension of time mechanism covers the relevant delay event, the problem is managed through the EOT process: the completion date is extended, and the liquidated damages clause remains operative. The problem arises where the extension of time mechanism does not cover the employer’s delay event — or where the employer fails to grant an EOT that should have been granted.

The Legal Principle

The prevention principle is ancient in origin and firmly established in English law. In Dodd v Churton [1897] 1 QB 562, the Court of Appeal held that where the employer orders additional works that necessarily delay the contractor, the completion date becomes ineffective and the contractor need only complete within a reasonable time. In Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd [1970] 1 BLR 111, the Court of Appeal confirmed that if an employer delays a contractor beyond the contract completion date, and the contract contains no provision for extending time in that event, the liquidated damages clause cannot apply.

The consequence is that the contractor is obliged to complete within a reasonable time — a flexible and often considerably longer obligation than the original completion date. The employer is limited to proving and recovering general damages for any delay beyond a reasonable time, which is a significantly more difficult case to make.

Practical Application

For employers: the EOT provisions must be comprehensive enough to cover every category of employer-caused delay. Review the Relevant Events or compensation events list carefully. If the employer might give late instructions, late information, or late access — ensure these are listed as qualifying events. Where an EOT should have been granted but was not, grant it retrospectively rather than risk time going at large. The cost of a belated EOT grant is less than the cost of losing the LD clause.

For contractors: where the employer has caused delay and has not granted an EOT, the contractor has a powerful argument that time is at large. This argument should be deployed carefully — the contractor’s obligation under time at large is still to complete diligently and within a reasonable time. It is not a licence to delay indefinitely.

Risks

For employers: the loss of the liquidated damages clause may represent a significant financial exposure, particularly in high-value projects with substantial daily LD rates. The employer is then exposed to the uncertainty and expense of proving general damages for delay. For contractors: relying on time at large as a strategy (rather than pursuing a legitimate EOT claim) may backfire if a court later holds that time is not at large, and the contractor has missed its original completion date.

Mitigation

At contract stage: ensure the EOT clause comprehensively covers all employer risk events. During the project: grant EOTs promptly and accurately. If an EOT is in dispute, err on the side of granting, reserving the right to revise. Do not refuse EOTs simply to preserve the liquidated damages position — the cure may be worse than the disease.

Conclusion

Time at large is a doctrine that punishes employers who delay contractors without providing a contractual mechanism to adjust the completion date. It is avoidable through comprehensive EOT provisions and timely, accurate EOT administration. For contractors, it is a powerful argument in the right circumstances — but one that must be deployed with a clear understanding of its implications.