Concurrent Delay and “Smash and Grab” Adjudications

6 July, 2018

In October 2017, Claire Barwick in our construction team wrote about concurrent delay and the prevention principle in relation to the case of North Midland Building Limited v Cyden Homes Limited 1. Claire wrote about how this decision clarified whether parties can allocate the risk of concurrent delay. In the case, the contractor (North Midland Building Limited) sought declarations that a bespoke clause that restricted the contractor’s ability to claim an extension of time in cases of concurrent delay offended the prevention principle.

It is understood that North Midland Building Limited will now be appealing the decision in the Court of Appeal and so watch this space – we will update you with any interesting decisions made by the Court of Appeal.

In another recent interesting High Court decision, this time in 2018 (Grove Developments Ltd v S&T (UK) Ltd 2), the Court decided (against previous court decisions going the other way) that if an employer failed to issue its payment notices and is on the receiving end of a smash and grab adjudication, the true value of the interim application could potentially still be adjudicated. This would clearly assist an employer where the interim payment application was effectively the last one in the payment cycle and so it could not correct any overpayment in later payment cycles.

We understand that this decision is also going to appealed in the Court of Appeal and, again, we will keep our eyes peeled.

1 [2017] EWHC 2414 (TCC)
2 [2018] EWHC 123 (TCC)