Construction contract, commercial, and dispute resolution consultancy

Time is one of the single most important factors in the construction process, ELA understands about the importance of time, preserving and obtaining time entitlement in relation to construction projects and advising clients in relation to risk and opportunities. The application of the law in relation to culpability for delay and acts of prevention are highly relevant with ELA having extensive experience in this area of construction law. There are various theories, for example dominant cause and the Malmaison approach in the award of time, noting common law principles of mitigation and contributory negligence. When completion occurs after the agreed completion date, the contractor is liable for damages to the employer, unless the delay was caused by an event, for which an extension of time is available, ELA can help in preserving and obtaining an award for an extension of time to the project completion date.

It is common place for the parties to agree a hierarchy for the valuation of change and this can lead to significant risk as well as opportunity for contracting parties. ELA have significant experience in amplifying detail to maximise the return in relation to the valuation of change, for the benefit of its clients.

How is a contracting party compensated when the other party is in breach of its obligations and the contract does not provide for a remedy in such circumstance. How are the damages calculated and what rules must be adhered to so that any loss incurred is preserved by the innocent contracting party. ELA have significant knowledge and experience in this area, anticipating the lines of any potential defence to unliquidated or general contractual damages. ELA are also experienced at providing the appropriate detail, evidence and accompanying narrative in support of a general damages claim.

Construction contracts commonly make express provision for the amount of damages to be paid by the contractor, if it fails to complete the works by the agreed completion date. Liquidated damages can be viewed as an agreed amount to be paid to the employer, if the contractor does not complete on time, the contractor can take the risk in relation to time. There is a distinct and developed line of case law in relation to liquidated damages and ELA has extensive knowledge and experience within this field.

Construction projects come with significant risks in relation to time and money, how do we ensure that obligations are kept and that if problems are encountered, the defaulting party is in a position to meet any damages, which have been incurred as a result of such default. On demand bonds, performance guarantee bonds, parent company guarantees and the like are facilities which can be used to ensure the project is secure, in so far it can be, from such eventualities as default and/or the failing of one of the contracting parties.

It is common place for the express provisions of a contract to contain a definition of what constitutes practical completion. Practical completion is very important as once it is issued, risk passes from the contractor to employer and this could have significant impact on such things as exposure to liquidated damages or the like, insurance provisions and in turn cash-flow. ELA have the knowledge to advise and advocate the best position for its clients in relation to the issuance of the practical completion certificate, which in turn reduces risk for the contractor and can aid its cash-flow.