Q&As

Can an employer claim LADs if the contractor's entitlement to an EOT for an earlier delay period has yet to be determined?

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Published on LexisPSL on 08/03/2017

The following Construction Q&A provides comprehensive and up to date legal information covering:

  • Can an employer claim LADs if the contractor's entitlement to an EOT for an earlier delay period has yet to be determined?

This Q&A considers the following questions:

Can an employer claim liquidated and ascertained damages (LADs) where there is uncertainty around whether the completion date should have been extended as a result of an earlier delay, for which the contractor has made an extension of time (EOT) claim but it hasn't been awarded as the contractor has not yet provided sufficient substantiation? What if there is a cap on liquidated damages which is reached anyway as the contractor is still in delay even if its EOT claim is approved, and is time barred from making a further claim for this second delay?

Subject always to the terms of the specific contract, LADs for delay are normally payable by the contractor in respect of the period starting from the ‘completion date’ (or similar terminology) as defined in the contract until practical completion is achieved. The contract will invariably allow for the completion date to be varied from time to time by the employer or its agent during the course of the project, for example where the contractor is entitled to an EOT.

For example, in the JCT Standard Building Contract 2016:

  1. the completion date is defined as: ‘the Date for Completion of the Wo

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