A paper based on the first prize winning entry in the Hudson essay competition 2018 which was presented to the Society of Construction Law at a meeting in London on 2nd April 2019
This paper first summarises the current law on the prevention principle. It then addresses three issues thrown up by Cyden Homes: the juridical basis of the principle; the relationship between extension of time provisions and the exclusion of the principle; and the prevention principle in cases of concurrent delay. The paper concludes by suggesting that the effect of setting time at large is an antiquated consequence of applying the prevention principle. The author proposes a reform of the law which would enable the prevention principle to continue to give effect to its fundamental purpose whilst better respecting the doctrine of freedom of contract.
1. The prevention principle today – 2. Juridical basis of the prevention principle: rule of law or implied term? – (i) Cyden Homes: implied term analysis – (ii) Rule of law analysis – The general principle: a party cannot benefit from its own wrong – The prevention principle as a rule of law – A non-absolute rule of law (‘rule of construction’) – (iii) Does it matter? Displacing the prevention principle 3. Extensions of time and exclusion of the prevention principle – 4. The prevention principle and concurrent delay – 5. Conclusion: suggested reform – The death of the prevention principle – Reform
The author: Max Twivy is a pupil barrister practising at Atkin Chambers.
Text: 16 pages