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'Time at large' means there is no date fixed for completing the building works or time period set out for completing the works, or such times and dates as agreed no longer apply. Letters of Intent often give instruction to commence saying how much and for what but given no indication of how long it is all going to take. In such circumstances time will be said to be "at large" but also there will be "no Contract". A "Contract" must have price, time and scope clearly defined and more for the purposes of statutory Adjudication. If time is "at large" in this instance then statutory Adjudication is likely to fail.

The second instance of "time at large" occurs during the works where time, and possibly the Extension of Time machinery, has all been agreed. This is more complex but instances of breakdown in the machinery are where the Contract Administrator is no longer able to, or has failed to, operate the time mechanism. It is rare for such an instance to occur. In Berhard’s Rugby Landscapes Ltd v Stockley Park Consortium (No.2) (1998) BRL the Contract Administrator breached the Contract by not operating the Extension of Time. It was held that the time machinery had to be either no longer capable of being achieved or not likely to be achieved to make time "at large". In other words, the time machinery must be frustrated and permanently "out of action".

This is further supported by the Wembley Stadium case Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd (No.2) (2007) EWHC 447 (TCC) where "time at large" was argued by Honeywell, the Court held the time extension machinery remained operational and was operated, so time was not at large. Is there any advantage of time being "at large"? Once established that time is "at large", the Contractor/Subcontractor will no longer be liable for Liquidated and Ascertained damages. The Contract must then be performed in a reasonable time. The word 'reasonable' is open to interpretation and depends on questions of f act and circumstances which will cause legal difficulties. Effectively, the Contractor will have to demonstrate what a "reasonable" time is. The Employer will still have the right to claim common law damage for delays caused by the Contractor, so the Employer will attempt to demonstrate the time taken is not "reasonable". The burden of proof is strictly on each side to prove, more so and more difficult when the time machinery exists. There is also an argument that a Contract without time machinery will be precluded from statutory Adjudication, particularly where time was not agreed at the start. There is a risk of vitiating the Contract and making Claims more difficult by changing a time mechanism to "time at large". It is far more preferable to use a Contract Provision for Extensions of Time as opposed to a common law Claim. The Claim will need to be proved in any event. However, if there is a real risk of Liquidated Damages being levied and difficulties in making a valid claim, claiming "time at large" might be the best option.

Author: Jonathan Nugent

Managing Director - Arbicon ADR Ltd, Chartered Quantity Surveyor, Construction Adjudicator, Arbitrator, Mediator, Expert Witness/Reports/Determination, Lecturer, Delay and Loss Analyst, Leading Authority on Construction Contracts/Law, Commercial Construction Contract Solutions and Dispute Resolution.