What is meant by 'time at large'?

What is meant by 'time at large'? How does it affect the employer's entitlement to levy liquidated damages for late completion?[1]

'Time at large' means there is no time fixed for completion or the time set for completion no longer applies.

Agreements for work to be carried out are often entered into without a completion period being stated. Letters of intent often contain instructions to commence work without a completion date being agreed. In these cases time is said to be 'at large'. 

Contractors can find themselves trapped into contracts where the time allowed for completion is too short and the amount of money to which they are entitled is insufficient to meet their additional costs. In these circum- stances they may turn to alternative means of rectifying the situation other than the normal claims for extensions of time and additional payment. 

For some time contractors have used the 'time at large' argument in an attempt to avoid paying liquidated damages. Their normal approach is to say that the contract period has either never been established or that, due to delays caused by the employer for which there is no express provision in the contract for extending the completion date, time becomes at large. This being the case, the contractor's obligation is merely to finish within a reasonable time.

Case Studies

• CASE #1
• The contractor successfully used this argument in the case of Peak Construction (Liverpool) Ltd v. McKinney Foundations Ltd heard before the Court of Appeal in 1970. It was held that, as delays on the part of the City Council in approving remedial works to the piling were not catered for in the extension of time provisions, the right to liquidated and ascertained damages was lost and time became at large. The Corporation was left with an entitlement to claim such common law damages as a result of the con- tractor failing to complete within a reasonable time as it was able to prove. 
• CASE #2
• The case of Rapid Building Group v. Ealing Family Housing, heard before the Court of Appeal in 1984, involved a contract let using JCT 63. Unfortunately, due to the presence of squatters, the housing association was unable to give possession of the site to the contractor on the due date. There was no pro- vision in JCT 63 for extensions of time for late possession. The contractor was therefore able to argue successfully that time became at large. The obligation was altered to completing within a reasonable time and the employer lost its rights to levy liquidated and ascertained damages.
• CASE #3
• In the case of Inserco Ltd v. Honeywell Control Systems (1996) Inserco con- tracted to complete all work by 1 April 1991. Due to additional and revised work, and lack of proper access and information, Inserco was prevented from completing on time. There was no provision in the contract for extending the completion date and time was held to be at large.

If time does become 'at large', the contractor's obligation is to complete within a reasonable time. What is a reasonable time is a question of fact: Fisher v. Ford (1840). Calculating a reasonable time is not an easy matter and would depend on the circumstances of each case. As Emden's Building Con- tracts' 8th edition puts it in Volume 1 at page 177:

• 'Where a reasonable time for completion becomes substituted for a time specified in the contract... then in order to ascertain what is a reasonable time, the whole circumstances must be taken into consideration and not merely those existing at the time of the making of the contract.'

Vincent Powell-Smith in his book Problems In Construction Claims at page 78 has this to say concerning 'time at large':

• If for some reason time under a building contract becomes 'at large', the Employer can give the contractor reasonable notice to complete within a fixed reasonable time, thus making time of the essence again: Taylor v. Brown (1839). However, if the contractor does not complete by the new date, the Employer's right to liquidated damages does not revive, and he would be left to pursue his remedy of general damages at common law.'

Time may also become at large where the architect or engineer fails properly to administer the extension of time clause as required by the contract. An example would be where an architect or engineer fails to make any award where a proper entitlement exists.

SUMMARY

• Time is at large when a contract is entered into with no period of time fixed for completion. Where this occurs the contractor's obligation is to complete work within a reasonable time.
• There may also be circumstances which arise rendering a completion period fixed by the contract as no longer operable, again rendering time at large. An example is where a delay is caused by the employer and the terms of the contract make no provision for extending the completion date due to delays by the employer.

References

1. https://zakreators.com/engineering-tracks.com/elearning/FIDIC34/150ContractualProblems.pdf ↩