Does the prevention principle relieve a contractor of liquidated or delay damages where it failed to serve a delay notice that the contract makes a condition precedent to an extension of time?
The prevention principle stops an employer enforcing a completion date it prevented the contractor from meeting. Whether it also rescues a contractor that missed a condition precedent notice decides who carries the delay, and the damages, on the project.
No: in English law the prevention principle does not defeat a valid condition precedent notice, so a contractor that fails to serve the required delay notice loses its extension of time and stays liable for liquidated or delay damages, even where the employer caused the delay
The prevention principle stops an employer holding a contractor to a completion date the employer itself made impossible. It has real force where the contract gives no way to extend time for the employer's acts: time is then set at large and liquidated damages fall away. But where the contract does provide an extension of time, and makes a delay notice a condition precedent to it, English law holds the contractor to the bargain. A contractor that does not serve the notice gets no extension, and the prevention principle will not rescue it. Australian courts divided on this: one decision let the principle override the missing notice, another refused. The English courts have doubted the permissive line, and the Court of Appeal has confirmed that the prevention principle is not a rule of policy that overrides the parties' agreement; they may allocate delay risk by clear words. Serve every condition precedent notice on time, whoever caused the delay.
| The principle | Bars an employer from enforcing a completion date it prevented the contractor from meeting |
| No extension machinery | Time is set at large; liquidated damages fall away; completion within a reasonable time |
| Clause covers the act | Time is not at large; the extension of time mechanism governs |
| Missed condition precedent | No extension; the prevention principle does not override it in England |
| Freedom of contract | Parties may allocate delay risk, including concurrent delay, by clear express terms |
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