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Delay Damages and Site Conditions: Contrasts in US and English Law

Paper number

Stephen A Hess and Julian Bailey

September 2015

A paper based on a joint seminar of the American Bar Association and the Society of Construction Law held in London on 3rd March 2015

A regular - but contentious - feature of construction contracts in the USA is a 'no-damages-for-delay' clause, which attempts to prevent a contractor from claiming compensation for employer-induced delay to the project. This paper, co-authored by Stephen A Hess (Denver, Colorado) and Julian Bailey (London), explains the status of such clauses in American law and considers how English law might treat them, in the light of challenges to comparable clauses here. The paper also discusses radical differences between the American and English treatment of unexpected ground conditions, both at common law and under standard contractual provisions.

1. Introduction - 2. 'No damages-for-delay' clauses: the USA - 3. 'No damages-for-delay' clauses: the English position - 4. Differing site conditions: the US position - 5. Differing site conditions: the English position- 6. Conclusions.

The authors: Stephen A Hess is an attorney at Sherman & Howard LLC in Denver, Colorado and editor of The Construction Lawyer, the American Bar Association's construction law review; Julian Bailey is a solicitor at White & Case LLP, London, and currently Chairman of the Society of Construction Law (UK).

Text: 29 pages