SHUTTING PANDORAS BOX

THE PREVENTION PRINCIPLE AFTER

MULTIPLEX v HONEYWELL
CRISPIN WINSER
Crispin undertakes work in all fields of commercial and
common law. In addition to drafting and advisory
work, he regularly appears at interim hearings and at
trial in the County Courts. He has also appeared in
the Queens Bench Division (including the Technology
and Construction Court), the Chancery Division
(including the Companies Court) and in alternative
dispute resolution procedures. He has experience of
working abroad in Ireland and Hong Kong.

This article was published in the Construction Law Journal at (2007) 23 Const LJ 511. It is based
on a paper co-written by the author and John Scott QC, SC, published by the Society of
Construction Law of Hong Kong.
Introduction
The essence of the prevention principle is that a party cannot benefit from its own breach of
contract. In other words a party cannot insist on the performance of a contractual obligation by the
other if it is itself the cause of the non-performance.
Whilst its origin is unclear (it has been variously described as being based upon a rule of law1 or
upon an implied contractual term2), the prevention principle has long been a part of English law.
1

SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VR 391, Supreme Court of Victoria, at 395

Balfour Beatty Buildings Ltd v Chestermount Properties Ltd (1993) 62 BLR 1, Colman J, at 29

One of its earliest recorded applications in the construction field was in the first half of the
Nineteenth Century in the case of Holme v Guppy3.
In that case a builder was engaged to carry out carpentry work during the construction of a
brewery. The work was due to be completed within four and a half months and liquidated damages
were payable if the work was not completed in that time. There was no contractual provision for an
extension of time. The work was delayed, in part by the employer giving late possession and in
part by the activities of others employed directly by him. It was held that the employers act of
prevention excused the contractor from performing in accordance with the time constraints in the
contract and therefore the contractor was not liable to pay liquidated damages.
This decision was upheld and applied by the Court of Appeal in Dodd v Churton4 which was itself
upheld by the House of Lords in Trollope & Colls v North West Metropolitan Regional Hospital
Board5 and Percy Bilton v Greater London Council6. In Trollope & Colls their Lordships approved
the following passage from Lord Denning MR in the Court of Appeal:
". It is well settled that in building contracts - and in other contracts too - when there is a
stipulation for work to be done in a limited time, if one party by his conduct - it may be quite
legitimate conduct, such as ordering extra work - 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 strict adherence to the time stated. He cannot
claim any penalties or liquidated damages for non-completion in that time."7
If the prevention principle is successfully invoked, time is no longer of the essence but becomes
at large: the contractual completion date ceases to be binding and the works must be completed
within a reasonable time.
Whilst, it is submitted, the prevention principle is clearly just and fair, it has been latched onto by
contractors, sub-contractors and their advisors as a potential avenue of escape from an otherwise
legitimate exposure to liquidated damages8. Arguments tend to be based either upon minor
variations instructed by the employer (or in the case of sub-contractors, by the contractor) or
alternatively failure to give possession of some minor part of the site, neither of which in reality has
any significant effect on the progress of the works. As such the prevention principle is all too often
the antithesis of the notions of justice and fairness to which it owes its existence.

Holme v Guppy (1838) 3 M & W 387

Dodd v Churton [1897] 1 QB 562, CA

Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601, HL

Percy Bilton Ltd v Greater London Council [1982] 2 All ER 623; [1982] 1 WLR 794; 20 BLR 1, HL

Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601 at 607

See for example Hudsons Building and Engineering Contracts 11th Edn paras 10.065-10.066

Extension of time provisions

Today almost all construction contracts contain a mechanism for giving the contractor an extension
of time in which to complete the works by extending the contractual completion date. The
existence of an extension of time provision is not of itself sufficient to avoid the prevention principle:
employer acts of prevention must be defined as events that trigger the right to an extension of
time9.
Standard form contracts tend to provide that the contractor must inform the contract administrator
of a claim for an extension of time within a short period of the trigger event occurring. Such notice
requirements are usually interpreted as being conditions precedent to the granting of an extension
of time. The strictness of these provisions is not calculated simply to maximise the contractors
potential exposure to liquidated damages, but is founded on good contract administration sense: on
the one hand it is the contractor who will know whether a particular event is on his critical path and
is likely to cause delay; on the other the employer may wish to take steps, such as issuing a
variation, to mitigate the effect of the delay or to avoid it altogether. The emphasis on early
warning is an increasingly important feature of new standard forms such as the New Engineering
Contract (NEC) and the Project Partnering Contract (PPC).
Contractors have attempted to turn such notice provisions to their advantage by arguing that,
where an act of prevention by the employer gives rise to the entitlement to an extension of time, but
the contractor has failed to comply with the notice period (with the effect that the entitlement to an
extension of time is lost), the prevention principle is re-engaged. Such an attempt was rejected,
quite rightly it is submitted, by the Supreme Court of New South Wales in Turner Corporation v
Austotel10 in the following terms:
If the Builder, having a right to claim an extension of time fails to do so, it cannot claim
that the act of prevention which would have entitled it to an extension of time for
Practical Completion resulted in its inability to complete by that time. A party to a
contract cannot rely upon preventing conduct of the other party where it failed to
exercise a contractual right which would have negated the effect of that preventing
conduct. the act of the proprietor does not prevent performance of the contractual
obligations within time: it entitles the Builder to apply for a contractual variation
extending the time for performance.11
Indeed, it is submitted that it would offend the very essence of the prevention principle if the
contractor were able to rely upon its own failure to give notice when it is this that has thwarted the
contractual extension of time provisions. An alternative interpretation that emerges from the
passage quoted above is that where the contract provides for an extension of time to be given for
what would otherwise be an employer act of prevention, then there is no act of prevention and
therefore the prevention principle cannot be engaged.
9

See Salmon LJ in Peak Construction Ltd v McKinney Foundations Ltd (1970) 1 BLR 111 at 121

10

Turner Corporation Ltd v Austotel Pty Ltd (1997) 13 BCL 378, Supreme Court of New South Wales (heard 2 June 1994,
previously unreported)

11

Turner Corporation Ltd v Austotel Pty Ltd (1997) 13 BCL 378 at 384-385

This latter interpretation was expressly accepted by the Supreme Court of New South Wales in a
further case decided a few months later, Turner Corporation v Coordinated Industries12, in which
Rolfe J said:
[Counsel] submitted that where one finds in a building contract [an extension of time
clause] there is no room for the prevention principle to operate because it is, in effect,
excluded by the express contractual provision. The authorities to which I have
referred support, in my opinion, this submission.13

The Gaymark decision

Although it seemed that aptly drafted extension of time provisions were being interpreted by the
courts in such a way as to lay the misuse of the prevention principle to rest, it re-emerged in 1999
in another Australian case, Gaymark Investments v Walter Construction Group14. In this case, an
appeal against an arbitral award, the employer contended that despite being responsible for the
delay, it was nonetheless entitled to liquidated damages because of the contractors failure to
comply with the strict notice clauses to which the extension of time provisions were subject. The
Supreme Court of the Northern Territory upheld the arbitrators award dismissing the employers
claim for liquidated damages.
The case turned on amendments to the extension of time provisions of a standard form contract
which had the effect, not of empowering the contract administrator to grant an extension of time,
but of entitling the contractor to such an extension provided that he complied with the notice
provisions. Crucially, there was no power conferred on the contract administrator to grant an
extension of time if the contractor failed to comply with the notice provisions.
The arbitrator considered that he had three alternatives:
(i) to imply a term giving the contract administrator the power to grant an extension of
time notwithstanding a failure by the contractor to comply with the notice provisions;
(ii) to hold that it was tough for the contractor: his failure to comply with the notice
provisions disentitled him to extra costs and exposed him to liquidated damages; or
(iii) to hold that in amending the contract in this way, the employer must be taken to have
accepted the risk of causing actual delay to the contractor and the contractor then
failing to apply in time for an extension.
The arbitrator held that the first alternative was unlikely given the careful amendment of the
contract and the clear view of the contract administrator that he had no such power. Whilst he
12

Turner Corporation Ltd (in provisional liquidation) v Coordinated Industries Pty Ltd (1995) 11 BCL 202, affirmed by the
New South Wales Court of Appeal at (1996) 12 BCL 33

13

Turner Corporation Ltd (in provisional liquidation) v Coordinated Industries Pty Ltd (1995) 11 BCL 202 at 217

14

Gaymark Investments Pty Ltd v Walter Construction Group Ltd [1999] NTSC 143; (2000) 16 BCL 449; (2005) 21 Const
LJ 71, Supreme Court of the Northern Territories

considered that the second alternative was not absurd from the contractors point of view, the same
could not be said from the employers point of view. He considered it absurd for the employer to be
able to cause a delay and then not only avoid paying for it, but also claim liquidated damages. This
left only the third option: time at large and no liquidated damages.
Counsel for the employer argued that the arbitrator had:
(a) misapplied the prevention principle as set out in Austotel;
(b) wrongly distinguished Austotel on the basis of the absence of a power to grant an
extension of time in the event of non-compliance by the contractor when this had been
irrelevant to the reasoning in Austotel;
(c) ignored the allocation of risk provisions under which the contractor accepted the risk of
completion on time; and
(d) wrongly construed the extension of time provisions as giving rise to the intention
encapsulated in the third alternative.
On behalf of the contractor it was argued that Austotel had been properly distinguished as it had
been a case of concurrent delay and not actual delay, and the existence of a power to grant an
extension of time in the event of non-compliance by the contractor had been relevant to the
decision.
Bailey J held that the arbitrator had been correct to distinguish Austotel and Co-ordinated
Industries as neither case concerned actual delay caused by the employer. He considered that
acceptance of the employers argument:
would result in an entirely unmeritorious award of liquidated damages for delays of its
own making (and this in addition to the avoidance of [the contractors] delay costs
because of that companys failure to comply with the notice provisions)15
In reaching this conclusion he relied upon the following passage from the judgment of Salmon LJ in
Peak Construction v McKinney Foundations:
The liquidated damages and extension of time clauses in printed forms of contract
must be construed strictly contra proferentem. 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 employers own fault or breach of contract,
then the extension of time clause should provide, expressly or by necessary inference,
for an extension on account of such a fault or breach on the part of the employer.16
Bailey Js final word on the matter was to say:

15

Gaymark Investments Pty Ltd v Walter Construction Group Ltd (2005) 21 Const LJ 71 at 88

16

Peak Construction (Liverpool) Pty Ltd v McKinney Foundations Ltd (1970) 1 BLR 111 at 121

I agree with the arbitrator that the contract between the parties fails to provide for a
situation where [the employer] caused actual delays to [the contractor] achieving
practical completion by the due date coupled with a failure by [the contractor] to
comply with the notice provisions [emphasis added]17.
This decision was strongly criticised by Professor Ian Duncan Wallace QC18. With respect, its
correctness is doubted for a number of reasons.
By way of background, it should be noted that the approach of the courts to liquidated damages
clauses, once viewed with caution if not open distaste, has become increasingly favourable and
now better reflects commercial realities. This is well illustrated by Philips Hong Kong v A-G of
Hong Kong19, in which Lord Woolf, giving the advice of the Privy Council, stated that the court
should not adopt an approach to provisions as to liquidated damages which could defeat their
purpose.20 The principle was further refined in the context of construction contracts in Jeancharm
v Barnet Football Club21 and Alfred McAlpine Capital Projects v Tilebox22. In the latter case
Jackson J reviewed the law on penalty clauses and concluded that the courts are predisposed,
where possible, to uphold contractual terms which fix the level of damages for breach. This
predisposition is even stronger in the case of commercial contracts freely entered into between
parties of comparable bargaining power.23
In light of this change in attitude, it is submitted that as a matter of general principle, courts today
should be more inclined to uphold contractual liquidated damages provisions and should be slower
than before to invoke the prevention principle.
It is beyond doubt that the contract under consideration in Gaymark provided expressly for an
extension of time in the event of employer delay. Bailey J held that it fell down because it did not
deal with the consequences of this coupled with the contractors failure to give notice. In
considering the validity of such a conclusion, due account must be taken of the purpose of the
notice provisions. As stated above, they are not included simply to maximise the contractors
potential exposure to liquidated damages, but are there to further efficient and effective
management of the contract. This aspect seems to have been overlooked by Bailey J, who
appears to have approached the provisions as if they were penal in nature.
It is submitted that there is no sound basis for putting any gloss on Salmon LJs requirement that
clear drafting is required for an employer to be able to claim liquidated damages as a result of
delay caused by his own actions, even less so when one considers the purpose of the notice
17

Gaymark Investments Pty Ltd v Walter Construction Group Ltd (2005) 21 Const LJ 71 at 89

18

In his article Prevention and Liquidated Damages: A Theory Too Far (2002) 18 BCL 82, which has itself been the
subject of criticism by Stephen Rae in his article Prevention and Damages: Who Takes the Risk for Employer Delays?
(2006) 22 Const LJ 307

19

Philips Hong Kong v A-G of Hong Kong (1993) 61 BLR 41, PC

20

Philips Hong Kong v A-G of Hong Kong (1993) 61 BLR 41 at 58

21

Jeancharm Ltd v Barnet Football Club Ltd [2003] EWCA Civ 58

22

Alfred McAlpine Capital Projects v Tilebox Ltd [2005] BLR 271, Jackson J

23

Alfred McAlpine Capital Projects v Tilebox Ltd [2005] BLR 271 at 280

provisions. Such additional requirements could be added ad infinitum to produce a patently absurd
result.
Bailey Js conclusion is simply irreconcilable with the passages from Austotel and Co-ordinated
Industries quoted above. The attempts to distinguish these do not stand up to scrutiny: there is
nothing in Austotel to support the suggestion that the existence of a power to grant an extension of
time in the event of non-compliance by the contractor played any part in Cole Js reasoning, and no
sound basis for drawing a distinction on the grounds of concurrent as opposed to actual delay (this
distinction is factually inaccurate as far as Austotel is concerned, as it was an agreed fact that there
was a period of actual delay).

Post Gaymark decisions

The issue was considered again in yet another Australian case, Peninsula Balmain v Abigroup
Contractors24, which concerned a contract with similarly strict notice provisions to Gaymark, but
also conferred a power to grant an extension of time in the event of non-compliance. Hodgson JA
held as follows:
I accept that, in the absence of the [contract administrators] power to extend time
even if a claim had not been made in time, [the contractor] would be precluded from
the benefit of an extension of time and liable for liquidated damages, even if delay had
been caused by variations required by [the employer] and thus within the so called
prevention principle I think that this does follow from the two Turner cases and the
article by Mr Wallace25
This statement, although obiter, clearly contradicts the decision in Gaymark. Strangely, Gaymark
appears not to have been cited to the court and is not referred to in the judgment. Further,
precious little reasoning is given in support of this statement. At best it appears to be a judicial nod
to Professor Wallaces article.
Abigroup was followed by another first instance decision in Australia, Beckhaus v Brewarrina26,
concerning the same extension of time provisions. Master Macready considered Austotel and Coordinated Industries and said that they:
decided that contractors who fail to comply with notice requirements remain liable to
liquidated damages while losing their rights to extension of time for the acts in
question.27

24
Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211; (2002) 18 BCL 322, New South Wales
Court of Appeal
25

Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211 at 343, referring to the article at footnote
20 above

26

Beckhaus v Brewarrina (No.2) [2004] NSWSC 1160, New South Wales Supreme Court (although the case went to the
New South Wales Court of Appeal this point was not considered)

27

Beckhaus v Brewarrina (No.2) [2004] NSWSC 1160 at [34]

Stephen Rae criticises this conclusion, and Professor Wallaces article generally, on the ground
that neither Austotel nor Co-ordinated Industries concerned a failure to comply with notice
provisions28. Whilst this observation is correct, it is submitted that both cases deal with the
application of the prevention principle conceptually, and that the absence of notice provisions is not
a valid ground for distinction. To use Cole Js expression (quoted above): A party to a contract
cannot rely upon preventing conduct of the other party where it failed to exercise a contractual right
which would have negated the effect of that preventing conduct. It makes no difference, it is
submitted, that the contractual right which would have negated the effect of the preventing conduct
is itself subject to conditions. Indeed, as a matter of practicality, a contractual right without a
mechanism through which to exert it is of no use to anyone. That this mechanism has been
specified should not alter the underlying principle.
The issue was considered again, albeit couched in slightly different terms, in the Scottish case of
City Inn v Shepherd Construction29. This case concerned an amended standard form contract
under which the contractor was required, when faced with an architects instruction which it
considered would either require an adjustment to the contract sum or cause delay, to provide
details of the same within 10 working days. In an attempt to avoid paying liquidated damages, the
contractor put forward two arguments: first, that this was a penalty clause and therefore
unenforceable; second, that the notice provisions only applied if the contractor in fact formed an
opinion as to whether the instruction was likely to cause increased cost or delay.
Both arguments were rejected. The former failed because it was held that the liability to pay
liquidated damages arose not as a result of the failure of the contractor to comply with the notice
provisions, which was not of itself a breach of contract, but as a result of the delay to the works. In
respect of the latter Clerk LJ said:
where the forming of a certain opinion as to the consequences of an instruction is a
condition precedent to the contractors invoking clause 13.8, the contractor cannot be
heard to say that by reason of his failure to form such an opinion the clause was not
brought into effect. In our view, it is implicit in a contractual arrangement of that kind
that the contractor must apply his mind to the instruction and form a view as to its likely
consequences.30
Whilst it was not necessary in City Inn for the court to decide whether the contractor would have
been liable to pay liquidated damages in the event of his failure to comply with the notice provisions
following an employer act of prevention, it is submitted that an affirmative answer to this question
may be inferred. First, it was not argued that the failure to comply with the notice provisions
defeated the claim for liquidated damages. Instead, the contractor relied upon a rather specious
argument31 based on the notice provisions only being themselves triggered by the forming of an
opinion. Second, it is submitted that the forming of an opinion is, in any event, analogous to the
giving of notice. The whole purpose of the contractor being required to act is, as suggested above,
28

Prevention and Damages: Who Takes the Risk for Employer Delays? (2006) 22 Const LJ 307

29

City Inn Ltd v Shepherd Construction Ltd [2003] BLR 468, Inner House, Scottish Court of Session, Second Division

30

City Inn Ltd v Shepherd Construction Ltd [2003] BLR 468 at 474-475

31

The phrase is Stephen Raes: Prevention and Damages: Who Takes the Risk for Employer Delays? (2006) 22 Const LJ
307 at 316

to effect good contract administration. An obligation to form an opinion without more is a purely
metaphysical notion of no practical use.
It is notable that there is no reference in the judgment to any reported cases on the operation of the
prevention principle. As such it is a judgment from first principles, and whilst open to criticism as to
its academic density, it is immune from criticism based on its ancestry.
In the commentary preceding the report of City Inn the editor speculates that if a contractor fails to
comply with notice provisions operating as conditions precedent to the grant of an extension of time
following an employers act of prevention, then unless the liquidated damages provision is
expressed to be an exclusive remedy, the court will be unlikely to allow the employer to benefit
from his own breach32. Whilst it is conceded that this situation poses conceptual difficulties33, it is
submitted that the courts should avoid invoking the prevention principle even in this situation.
This is because the prevention principle is not sophisticated enough to deal with the myriad delay
situations which occur. Employer delay may take many forms, from the unknowing and entirely
innocent through to the deliberate (and perhaps even malicious). If the employer obstructs the
contractor, yet the contractor fails to apply for an extension of time, there is something
unconscionable in the employer levying liquidated damages for the consequent delay. Yet if the
employer entirely unknowingly causes delay, what fairness is there in the contractor sitting back,
failing to apply for an extension of time in accordance with a mechanism he agreed to, and then
invoking the prevention principle to avoid the liability to pay liquidated damages? It is submitted
that a hard and fast rule is preferable in commercial relationships.

Multiplex v Honeywell
These issues have now been considered in England in the recent case of Multiplex Constructions v
Honeywell Control Systems34. In this case, one of a number of actions arising out of the
construction of the new Wembley stadium, the sub-contractor sought to argue that time was at
large under the sub-contract. Three arguments were advanced, characterised as the construction
argument, the operational argument and the Gaymark point. There was a further argument based
on a settlement agreement between the employer and the contractor which need not be considered
here.
The construction argument focussed on the construction of the extension of time provisions within
the sub-contract. Having set out the history of the prevention principle, Jackson J derived three
propositions:
(i) Actions by the employer which are perfectly legitimate under a construction contract
may still be characterised as prevention, if those actions cause delay beyond the
contractual completion date.
32

Commentary on City Inn Ltd v Shepherd Construction Ltd [2003] BLR 468 at 470

33

Keating on Construction Contracts 8th Edn para 9-025

34

Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No.2 ) [2007] EWHC 447 (TCC), Jackson J

(ii) Acts of prevention by an employer do not set time at large, if the contract provides for
extension of time in respect of those events.
(iii) In so far as the extension of time clause is ambiguous, it should be construed in favour
of the contractor.
He explained that what was meant by the third proposition was that an extension of time should
readily be available to the contractor (or in this case the sub-contractor). The effect of this is that
the extension of time provisions will be construed against a contractor trying to argue that time is at
large.
The act of prevention relied upon in Multiplex was not a breach of contract but a valid instruction
under the contract. One of the relevant events giving rise to the entitlement to an extension of time
was:
delay caused by any act of prevention or default by the Contractor in performing its
obligations under the Sub-Contract35
Applying the three principles identified above, Jackson J held that a direction legitimately issued
under the contract which delayed the works beyond the contractual completion date was an act of
prevention, but that because there was an entitlement to an extension of time in respect of acts of
prevention, time was not set at large.
The operational argument focussed on the notice provisions of the sub-contract, which were
conditions precedent to the granting of an extension of time. Jackson J concluded that the proper
construction of these provisions meant that the sub-contractor was only required to give the best
information he could as soon as he was reasonably able to do so. Accordingly, the argument that
by failing to provide proper programming information the contractor had made it impossible for the
sub-contractor to comply with the notice provisions was rejected: the sub-contractor could not give
information if the contractor was withholding it from him.
In relation to the Gaymark point, Jackson J considered the authorities referred to above and said:
I am bound to say that I see considerable force in Professor Wallace' criticisms of
Gaymark. I also see considerable force in the reasoning of the Australian courts in
Turner and in Peninsula and in the reasoning of the Inner House in City Inn. Whatever
may be the law of the Northern Territory of Australia, I have considerable doubt that
Gaymark represents the law of England. Contractual terms requiring a contractor to
give prompt notice of delay serve a valuable purpose; such notice enables matters to
be investigated while they are still current. Furthermore, such notice sometimes gives
the employer the opportunity to withdraw instructions when the financial consequences
become apparent. If Gaymark is good law, then a contractor could disregard with

35
clause 11.10 of the subcontract, reproduced in Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd
(No.2) [2007] EWHC 447 (TCC) at [19]

10

impunity any provision making proper notice a condition precedent. At his option the
contractor could set time at large.36
Jackson J did not need to decide the point because in Multiplex there was no automatic entitlement
to liquidated damages for failure to complete on time: liquidated damages were only payable if the
failure to complete was due to a failure of the sub-contractor (which it was not).
The decision in Multiplex has been criticised on the grounds that Jackson J did not properly apply
the contra proferentem rule or deal adequately with the argument that a valid act under the contract
could not be an act of prevention37. With respect, it is submitted that these criticisms are invalid. It
is clear from Dodd v Churton and Trollop & Colls that an act need not be a breach of contract for it
to be an act of prevention. As to the application of the contra proferentem rule, if the extension of
time clause is to be construed in favour of allowing a party an extension of time, it will inevitably go
against that party if they wish to argue that they are not entitled to an extension of time. In this
sense, it may be said that the rule is being wrongly applied. However, it would be perverse for the
contra proferentem rule to encourage the breakdown of contractual provisions, or for it to
encourage one interpretation when seeking an extension of time (as the contractor almost
invariably will initially) and another if later arguing that time is at large.
Multiplex is of limited significance as it turned upon the construction of specific terms of a bespoke
contract, but Jackson Js comments regarding Gaymark, although obiter, are welcome and are of
wider application.

Conclusions
In circumstances where an employer is genuinely obstructive, the prevention principle has an
important role to play to protect contractors who have done everything they should from the
injustice of being held to a completion date, or paying liquidated damages, when the employer has
caused delay. In all other circumstances, it is to be hoped that the prevention principle will
disappear: not only does it fly in the face of good contract administration, but it also throws up huge
(and extremely expensive) problems in relation to the calculation of a reasonable time to complete
the works38.
Whilst a decision (preferably from the Court of Appeal or above) that Gaymark does not represent
the law of England would be welcome, there is reason to be fairly confident that as long as
contracts contain extension of time provisions combining a wide range of trigger events with nonabsolute notice requirements, the days of the abuse of the prevention principle are over.
2007 Crispin Winser and the Construction Law Journal

36

Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No.2) [2007] EWHC 447 (TCC) at [103]

37

Jeremy Winter Little chance of time at large Construction News Plus, 19.04.07, p.48

38

For a detailed discussion of the principles governing the calculation of a reasonable time see Keith Pickavance A Little
of Time at Large: Proof of a reasonable time to complete in the absence of a completion date SCL paper, 4 October 2005

11