The Honeywood File(1) is a hilarious account of the catastrophes befalling the design, construction and agreement of the final account for a domestic residence. The book purports to be the architect’s file of correspondence with all parties. It was written in the 1920s and was ready for an updated version. This has now been provided (possibly inadvertently) in the judgment of Mr Justice Akenhead in the case of Walter Lilly v Mackay(2). The judgment starts with many extracts from the client’s emails and letters, as opposed to the architect’s, but tells a similar tale of woe (or disaster, to use the judge’s description) over the design, construction and agreement of the final account on a residential project.
The judgment covers every possible element of a final account but this article is concentrating on just one – extensions of time under the JCT contract.
The client contended that all the delays to completion were caused by the poor workmanship or defective design by the contractor and delays in completing remedial works. The contractor argued that the alleged defects were design defects, for which he had no responsibility. Given the potential for concurrent delays, the court also gave consideration to the current case law in this area.
There was no baseline programme for the works, and the delay experts had devised their own methods for analysing the causes of, and effect of, delaying events. Again, the court expressed views on the preferable forms of analysis to use.
Mr Justice Akenhead concluded as follows:
The effect of the judgment is that a contractor is entitled to an extension of time for all events which are at the client’s risk, even if the contractor is in culpable delay for part of the delay period. In the light of the judge’s comments about the prevention principle, care will also need to be taken over any amendments to the JCT (or other) contracts which attempt to hold the contractor partly responsible for concurrent delay and entitle the client to liquidated damages for the element of the delay calculated to have been caused by the contractor.
1. The Honeywood File: an Adventure in Building, Harry B Creswell.
2. Walter Lilly & Company Limited v GPC Mackay  EWHC1773 (TCC).
3. As was done in the Scottish case of City Inn Ltd v Shepherd Construction Ltd.
Frances Alderson, Partner, Fladgate LLP (firstname.lastname@example.org)