This case is a reminder that the word of the written contract almost always reigns supreme. The ability to imply terms – such as, here, through the prevention principle – is increasingly uncommon, as contract drafters try to cover every eventuality.

The judgment in question is North Midland Building Ltd vs Cyden Homes Ltd from the Court of Appeal in July 2018. North Midland was the contractor and Cyden Homes the employer on the construction of a large private home. The judgement concerns interpretation and enforcement of an amended extension of time clause under JCT. The contract was governed by JCT Design and Build 2005. The amended clause provided that, to the extent the completion date had been delayed by concurrent events where one was contractor’s risk, the contractor would not be entitled to an extension of time. 

North Midland had claimed an extension for certain delay events which were rejected on the basis that any delays arising from these events “have been consumed by culpable delays attributable to North Midland”. North Midland sought declarations as to the meaning and effect of the amended contract clause. It argued that in the circumstances of concurrent employer and contractor delays, time became “at large” and that the employer could not recover liquidated damages. This was on the basis of the application of what is known as the prevention principle.

“Most importantly the court found that parties can ‘contract out’ of the effects of the prevention principle – there is no legal principle that prevents them doing so”

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