Construction Law
Construction Delay and Extension of Time Barristers
A Barrister-led service for contractors, subcontractors and employers on extensions of time, liquidated damages and loss and expense, with the same Barrister advising, drafting and arguing your case.
Takes about 2 minutes. No obligation.
Barristers regulated by the Bar Standards Board
Delay disputes usually involve two linked claims running in opposite directions. The contractor wants more time, so that it is not liable for liquidated damages, and more money, to cover the extra cost of being on site longer. The employer wants to hold the contractor to the completion date and deduct liquidated damages for every week of overrun. Both sides' positions depend on the contract's mechanism for extending time, on whether the right notices were given, and on what actually caused the critical delay.
Liquidated damages are a pre-agreed sum, usually a rate per week, payable if the works are not completed by the contractual date. They save the employer proving its actual loss and are generally enforceable, because the courts will only strike down a clause as a penalty if it imposes a detriment out of all proportion to any legitimate interest the employer has in timely completion. The prevention principle sits alongside this: an employer cannot hold a contractor to a completion date that the employer's own acts, such as late information or variations, have made impossible. Extension of time clauses exist largely so that the date can be moved and liquidated damages preserved. Where there is no valid mechanism, time may become 'at large', leaving the contractor to complete within a reasonable time and the employer to prove its general damages.
Notice provisions matter. Many contracts require the contractor to notify delay or a compensation event within a set period, and some make notice a condition of any entitlement, so a late notice can lose a claim that is otherwise good. Concurrent delay, where an employer risk event and a contractor risk event both delay completion over the same period, is one of the more contested areas. The general position in England and Wales is that the contractor may be entitled to an extension of time but not to its prolongation costs for that period, but the contract wording can change this and the outcome depends heavily on the facts. In broad terms, JCT contracts deal with time through Relevant Events and money through a separate loss and expense regime, while NEC contracts treat both time and money through compensation events assessed against an accepted programme, with an emphasis on early warnings and strict notification.
HireABarrister is a Barrister-led service. The Barrister you instruct reads the contract, the programme and the correspondence, advises you on entitlement, drafts the claim or the defence, and argues it in adjudication, arbitration or court, working with a programming or quantum expert where one is needed. Barristers do not conduct litigation unless separately authorised, so you or your company send notices, serve documents and manage records. Large multi-party delay disputes with extensive disclosure may also need a Solicitor, and your Barrister will say so.
What Construction Delay Claims Barristers Do
Extensions of Time
Advice and drafting on entitlement:
- Whether an event is an employer risk under your contract
- Notice requirements and whether a time bar applies
- The effect of the prevention principle on the completion date
- Whether time has become at large
- Concurrent delay and how your contract allocates it
- Responding to a refused or inadequate extension
Liquidated Damages
For employers and contractors:
- Whether the clause is valid or arguably a penalty
- Correct notices before deducting liquidated damages
- Sectional completion and partial possession
- Interaction with payment and pay less notices
- Liquidated damages after termination
- Caps and exclusions affecting the sum deducted
Deductions from payments also have to follow the payment notice rules. Payment notices and adjudication are covered on their own pages in this section.
Loss and Expense
Recovering or defending the money claim:
- Prolongation costs such as site overheads and staff
- Disruption and loss of productivity
- Head office overheads and the evidence needed
- Finance charges and acceleration costs
- Compensation events assessed under NEC
- Global claims and why courts treat them with caution
Barrister-Led, With Your Experts
The same Barrister:
- Reviews the programme, records and correspondence
- Instructs and works with a programming expert
- Instructs a quantum expert on the costs claimed
- Drafts the delay claim, defence or adjudication submissions
- Tests the other side's delay analysis
- Presents the case in adjudication, arbitration or court
You send notices, serve documents and keep site records. Your Barrister tells you what is needed and when.
How Direct Access Works
- 1
Contract and Notices Review
Your Barrister identifies the form of contract and any amendments, the extension of time and loss and expense provisions, and every notice deadline, then checks which notices were given and whether any entitlement may be time-barred.
- 2
Records and Programme
You gather the baseline and updated programmes, progress reports, site diaries, instructions, minutes and correspondence. Delay claims are won on contemporaneous records, so gaps are identified early.
- 3
Delay Analysis
Where the claim justifies it, a programming expert analyses the critical path using a recognised method, such as time impact or windows analysis, to show which events actually delayed completion and by how long. Your Barrister frames the questions so the analysis matches the contract.
- 4
The Claim or Defence
Your Barrister drafts the extension of time and loss and expense claim, or the employer's response, linking each event to its effect on completion and each cost to the delay. A quantum expert may support the figures.
- 5
Negotiation or Adjudication
Many delay disputes settle once both sides see the analysis. If not, the contract or statute will usually allow adjudication, which produces a binding decision within weeks. Your Barrister prepares the submissions and can represent you.
- 6
Court or Arbitration
Larger disputes may go to the Technology and Construction Court or arbitration, after the construction pre-action protocol where it applies. Your Barrister cross-examines the opposing programming and quantum experts and presents the case.
Does your case qualify for Direct Access?
Tell us about your matter and we'll confirm whether you can instruct a Barrister directly, then match you with the right specialist.
Prefer to talk? Call 0800 302 9921. Lines open 8am to 8pm, same-day callback.
Frequently Asked Questions
What is the prevention principle?
It is the rule that a party cannot insist on performance which it has itself prevented. If the employer's acts, such as late design information or variations, delay completion, it cannot claim liquidated damages for that delay unless the contract allows the completion date to be extended. That is why a working extension of time clause usually protects the employer as much as the contractor.
We missed the notice deadline. Have we lost the claim?
Not necessarily, but it is a real risk. Whether a late notice is fatal depends on how the clause is worded: some are clear conditions that bar the claim, others are not. The employer's own conduct and other routes to time may also matter. Get the clause reviewed before you rely on the claim or concede it.
Who bears the risk of concurrent delay?
There is no single answer. In England and Wales the general approach is that a contractor delayed by both its own and the employer's events may get an extension of time but not prolongation costs for that period. Many contracts are amended to deal with concurrency expressly, and the courts have upheld such clauses. The facts and wording decide each case.
Can the employer deduct liquidated damages from an interim payment?
Usually, if the contract allows it and the correct notices have been given, including a pay less notice where the payment rules require one. A deduction made without the proper notices may be challenged in adjudication. Your Barrister can check whether the steps were followed on either side.
Do I need a programming expert?
For a significant contested delay claim, usually yes. Adjudicators, arbitrators and judges expect a proper analysis of the critical path rather than a list of events. For smaller claims, a well-evidenced narrative linked to the programme may be enough. Your Barrister will advise on whether the cost of an expert is proportionate.
How do JCT and NEC differ on delay?
In broad terms, JCT contracts separate time and money: the contractor applies for an extension for Relevant Events and separately claims loss and expense for Relevant Matters. NEC contracts deal with both together through compensation events, assessed on their effect on the accepted programme, with early warnings and notification deadlines that can bar late claims. Amendments to either form often change the risk allocation.
Why use a Barrister rather than a claims consultant?
A claims consultant can prepare delay and loss and expense submissions and represent you in adjudication, but cannot give you a Barrister's rights of audience if the dispute goes to court, so you may need to change representative part way through. With us the same Barrister leads from first advice to any hearing, working alongside a programming or quantum expert where needed. Fees are often comparable, and the fixed fee is agreed up front.
What does a Barrister-led delay claim cost?
Fixed fees, agreed up front. Advice starts from £250 and court representation from £850, with a clear quote before any work begins.
Facing Liquidated Damages or Owed an Extension?
Speak to a specialist Barrister who will lead your delay claim or defence, from the notices to any hearing.
Or call us: 0800 302 9921. Lines open 8am to 8pm, same-day callback.