The approach to concurrent delay differs within common law systems. For example, in England and Wales, a contractor would be entitled to a full extension of time but not time related costs in the event of concurrent delay. By contract, Scotland and Hong Kong have adopted an apportionment approach, under which a judge will apportion the delay between the contractor and the employer.
In civil law jurisdictions, the approach to concurrency is less certain and arguments can be made for both the 'time but not money' approach and the apportionment approach. Civil law courts will be guided by the principle of good faith, and may therefore be unwilling to apply liquidated damages for concurrent delays.
Duty to mitigate delay
Common law systems often recognise a duty to mitigate loss or damage as a general principle. Therefore where there is a duty to mitigate time-associated costs, there is not necessarily a duty to mitigate the delays themselves.
These legal obligations can, of course, be modified by contractual provisions. For example, the JBCC contract, a standard form contract popular in South Africa, imposes a duty on contractors to take reasonable steps to mitigate delays.
Civil law systems tend to have a stronger duty to mitigate due to the obligation to perform contractual obligations in good faith. The contractor's obligation to mitigate is strongest in relation to contractor delay events; however, there is still an expectation of reasonable proportional efforts to mitigate employer delays.
Liquidated damages or penalties
Liquidated damages are damages fixed by the contract which are payable in the event of a breach. The purposes of liquidated damages generally are to encourage compliance with the contract; provide certainty as to the consequences of a breach; and limit liability. In this regard, liquidated damages clauses are for the benefit of contractors and employers alike.
Common law and civil law jurisdictions take different approaches to liquidated damages.
Common law emphasises the certainty provided by liquidated damages clauses. The amount of liquidated damages stipulated in the contract will be respected regardless of the actual loss suffered. Importantly, liquidated damages clauses are also considered to be the exclusive remedy for delay unless otherwise provided for in the contract. Therefore, recovery will be limited to the amount of liquidated damages, even if the employer's actual losses are greater. The amount provided for in the contract as liquidated damages should therefore be a genuine pre-estimate of loss to avoid being held by the courts to be an unenforceable penalty.
By contrast, civil law systems embrace the punitive nature of liquidated damages clauses. In civil law jurisdictions, the liquidated damages clause is often referred to as a 'penalty' clause, and is made up of both coercive and compensatory elements.
The amount of liquidated damages in civil law systems tends to be less certain than that under a common law system. It may be possible for a judge to decrease or increase the liquidated damages to reflect actual loss, depending on the applicable law. Additionally, actual damages may or may not be recoverable on top of the liquidated damages.
Relief in respect of Covid-19
There has been much discussion on whether Covid-19 can be classed as a force majeure event. Regardless, force majeure may only entitle the contractor to an extension of time but not costs. We have therefore seen recent attempts to apply concepts such as imprévision to the Covid-19 crisis, which would allow for renegotiation of the contract to capture the lost costs element. Additionally, contractors have attempted to rely on change of law provisions in contracts to show entitlement to costs.
In the Middle East, contractors have been using some interesting arguments to capture the costs associated with Covid-19. In recent years, force majeure clauses in the Middle East have been expanded to allow recovery of standby costs for blockades. We have recently seen contractors characterising Covid-19 closures as "blockades" in order to take advantage of these recently expanded force majeure clauses in order to recover costs.
The next EMEA construction briefing will compare cost claims in various jurisdictions. To register your interest to attend, please email [email protected].