In North Midland Building Ltd v Cyden Homes Ltd (2018) EWCA Civ
1744, the Court of Appeal of England and Wales (CA) held that a
clause excluding a contractor's entitlement to an extension of
time for concurrent delay was enforceable. More controversially, in
reaching its decision, the CA also suggested that parties to a
construction contract could contract out of the prevention
principle.*
Facts of the Case
- North Midland (contractor) and Cyden
(employer) entered into a contract based on an amended JCT 2005
form. The clause in question, Clause 2.25.1.3(b), stipulated that
where North Midland caused delay, and such delay was concurrent
with delay caused by Cyden, Cyden need not need to take such delay
into account when calculating North Midland's entitlement to an
extension of time ("EOT").
