Prevention and the Allocation of the Risk of Project Delays: Evolution or Revolution?

Accessing papers

If you are logged in as a member or a registered academic, you will see a link to download the paper for FREE. The link is just above the Add to Cart button.

If you wish to purchase the paper, you must be logged in first (click here to log in, or click here to register). You will then see the Add to Cart button. You may also have a choice of preferred format if both are available - PDF download costs £3 inc VAT, printed version costs £7.50 inc postage (no VAT). Choosing one or the other changes the price displayed.

When you are ready to check out, use the 'View basket' link in the top left of the website.

Mathew Stulic

May 2010

A paper based on a first prize entry in the Hudson Prize essay competition 2009 presented to a meeting of the Society of Construction Law in London on 18th May 2010.

In this Hudson prize winning paper, Mathew Stulic looks at the movement in English caselaw towards holding that, if employer-caused delays cause a project overrun but mandatory extension of time notice provisions (ie clauses whereby the contractor may apply for an extension of time for a range of causes of delay - including employer-caused delay - and if objective criteria are met, an extension must be granted) are not complied with, the mere fact of such non-compliance breaks the causal link between the employers' act of prevention and the contractor's liability for liquidated damages. He considers the Australian and Scottish cases, before looking at the recent English authorities. Does the mere non compliance with mandatory extension of time clauses exclude the operation of the prevention principle (namely that a party to a contract can not insist upon performance of a contractual provision if the acts or omissions of the party insisting on that condition are the reason that the provision has been breached)?

Allocation of the risk of project delays - The prevention principle - The issue - Austotel - Gaymark - Peninsula Balmain - The City Inn decisions - Multiplex - Steria - Conclusion.

The author: Mathew Stulic is a senior associate in the Construction and Major Projects Group, Clayton Utz, Sydney, Australia.

Text 15 pages.

Paper number: 
May 2010, printed/online, 326k

Our papers

The Society has published nearly 400 papers since 1984. Some are published both in hard copy and electronically (numbered), others in electronic format only (number prefixed 'D'). The hard copy papers can be purchased (except those marked with an asterisk which are no longer available). They are all also available as PDF files to download.

Those available as downloads can be accessed free by members and registered academics (students and staff) - if logged in, they will see a link to the file just above the Add to Cart button on each paper's page. Others can purchase the PDF file for a cost of £3.00. Note that this sum includes VAT, since VAT is chargeable on digital files.

For further instructions on downloading, click here. The PDF file will only open on your computer if you have Adobe Acrobat installed (to obtain a free copy, click here). To save the paper to your computer, choose the 'save' icon on the Acrobat toolbar before opening the paper.

For personal use only

The papers on this website are for use by SCL members (and those who pay for them) only, and papers may be downloaded, printed and/or otherwise retained for that purpose only by members of the SCL (and those who purchase them).  The availability of all papers past and present represents a significant benefit to members of SCL and wider dissemination of SCL papers dilutes that to the detriment of the membership.  Further and more importantly, copyright in the papers belongs jointly to the writers of the paper and to the SCL, and the SCL is not therefore in a position to provide any wider licence.  Accordingly the SCL asks members and those who purchase papers not to disseminate papers more widely than their licence allows (e.g. by posting them on internal legal resource intranet databases and the like).