Time - Building Contract Claims - page 31

on any consensual or quasi-contractual basis which would be acceptable
in English or Commonwealth Courts it is submitted.' 83 (emphasis added)

The important question to be asked before this kind of argument can be
entertained is the extent to which pressure is put on a contractor. The
contractor's problem is one of causation. Where the architect wrongfully
fails to make an extension of time, either at all or of sufficient length, the
contractor's clear route under the contract is adjudication or arbitration. If,
as a matter of fact and law, the contractor is entitled to an extension of time,
it may be said that he should confidently continue the work, without
increasing resources, secure in the knowledge that he will be able to recover
his prolongation loss and/or expense, and any liquidated damages wrong-
fully deducted, at adjudication or arbitration. If he increases his resources,
that is not a direct result of the architect's breach, but of the contractor's
decision.
In practice, it must be acknowledged that a contractor in this position may
not be entirely confident. The facts may be complex and the liquidated
damages may be high. Faith in the wisdom of the adjudicator, arbitrator
or even the judge, may not be total. It may be cheaper, even without
recovering acceleration costs, for the contractor to accelerate rather than
face liquidated damages with no guarantee that an extension of time will
ultimately be made. As a matter of plain commercial realism, the contractor
may have no sensible choice other than to accelerate and take a chance as to
recovery. Unless the contractor can show that the architect has given him no
real expectation that the contract period will ever be extended and in those
circumstances the amount of liquidated damages would effectively bring
about insolvency, this kind of claim has little chance of success 84 .
Acceleration has been considered in Motherwell Bridge Construction Ltd v.
Micafil Vakuumtechnik and Another 85 . In the course of an extremely long
judgment, the court concluded that the contractor was entitled to recover
the cost of acceleration if an extension of time was justified, but refused, and
the liquidated damages were 'significant'. Although the judgment was long,
much of it was a recital of facts and the ratio for the decision is difficult to
decipher although pressure from the employer appears to have been a
significant factor. Moreover, the court appeared to agree that the contractor
was additionally entitled to loss and/or expense for the prolongation which
would, but for the acceleration, have taken place. That seems to give the
contractor, not two bites at the cherry but two cherries for the price of one.
It is thought that the better view is the one earlier set out in Ascon
Contracting Ltd v. Alfred McAlpine Construction Isle of Man Ltd where it was
said that there could not be

'both an extension to the full extent of the employer's culpable delay,
with damages on that basis, and also damages in the form of expense

83 I. N. Duncan Wallace, Hudson's Building and Engineering Contracts , 11th edition, 1995, Sweet &
Maxwell, p. 909.
84 Perini Corporation v. Commonwealth of Australia (1969) 12 BLR 82.
85

(2002) CILL 1913.