Time - Building Contract Claims - page 19

'The whole right of recovery of liquidated damages under clause 24 does
not depend on whether the architect, over whom the contractor has no
control , has given his certificate by the stipulated day.' 49

(emphasis

added)

It seems that the court recognised that the architect is the employer's agent.
Had the employer's argument succeeded, it would have been contrary to
the established principle that a party to a contract cannot take advantage of
his own breach 50 . The 12-week review period has been confirmed in a recent
case:

'The process of considering and granting extensions of time is to be
completed not later than 12 weeks after the date of practical completion
and the architect must, within that timescale, either finally fix the com-
pletion date or notify the contractor that no further extensions of time are
to be granted.' 51

2.3 Extension of time clauses in contracts

If the parties intend that liquidated damages are to be payable if the
contractor fails to complete the works, a date for completion must be
stipulated in the contract. That is because there must be a definite date
from which to calculate liquidated damages 52 . There is an implied term in
every contract that the employer will do all that is reasonably necessary to
co-operate with the contractor 53 and that he will not prevent him from
performing 54 . In the context of a building contract, the employer's co-
operation probably extends to little more than that he should ensure that
the contractor has all necessary drawings and instructions at the right time
and adequate access to the site to enable him to carry out the work. In this
respect, the employer also has a duty to ensure that any architect appointed
by him carries out his duties properly although the duty does not arise until
the employer becomes aware that the architect is not performing properly
and that there is a need to remind him of his duties 55 .
Alongside the implied term of co-operation, there must be in every
contract an implied term that neither party will do anything to hinder or
delay performance by the other 56 . Such a term was upheld as generally
applicable to building contracts in London Borough of Merton v. Stanley Hugh

49 (1987) 39 BLR 30 at 39 per Nourse LJ.
50 Alghussein Establishment v. Eton College [1988] 1 WLR 587 HL.
51 Cantrell and Another v. Wright & Fuller Ltd (2003) 91 Con LR 97 at 147 per Judge Thornton.
52 Miller v. London County Council (1934) 50 TLR 479.
53 Luxor (Eastbourne) Ltd v. Cooper [1941] 1 All ER 33.
54 Cory Ltd v. City of London Corporation [1951] 2 All ER 85.
55 Perini Corporation v. Commonwealth of Australia (1969) 12 BLR 82; Penwith District Council v. V. P.
Developments Ltd , 21 May 1999, unreported; Hong Kong Development Co (Pte) Ltd v. Hiap Hong & Co Pte
Ltd (2000) CILL 1787.
56 Barque Quilpue Ltd v. Brown [1904] 2 KB 261.