The acceleration dilemma: can English law accommodate constructive acceleration?

AuthorAlan Whaley, Brodie McAdam, Paul Crowe
PositionSchool of the Built Environment , University of Salford, Salford UK AND Sweett Group Plc, UAE; School of the Built Environment, University of Salford, Salford, UK; School of the Built Environment, University of Salford, Salford, UK AND Capita Plc, Manchester, UK
Pages248-267
The acceleration dilemma: can
English law accommodate
constructive acceleration?
Alan Whaley
School of the Built Environment, University of Salford, Salford, UK and
Sweett Group Plc, UAE
Brodie McAdam
School of the Built Environment, University of Salford, Salford, UK, and
Paul Crowe
School of the Built Environment, University of Salford, Salford, UK and
Capita Plc, Manchester, UK
Abstract
Purpose – The aim of this paper is to explore the hypothesis that a contractor is entitled to payment for
“constructive” acceleration implemented to avoid liquidated damages when denied a warranted time
extension request by the employer or certier under an English law construction contract. This claim is
recognised in the US legal system, but not elsewhere.
Design/methodology/approach – This paper adopts a “black letter” approach to reviewing the
claim of constructive acceleration within the context of English and Commonwealth case law, from the
perspective of a claimant contractor.
Findings The research presented in this paper concludes that whilst claims for constructive
acceleration are unlikely to succeed in an English court on the basis of US law, a claim might be
supportable on more orthodox common law grounds. These include implied instructions under the
contract, breach of the contract based on the employer or certier’s failure to operate the contract,
mitigation of damages, unjust enrichment and tortious intimidation.
Research limitations/implications – The focus of this paper is placed on English, Unites States,
Canadian and Australasian case law.
Practical implications The range of potential legal grounds for constructive acceleration
examined in this paper provides a toolkit for practitioners preparing to make or defend constructive
acceleration claims. This paper also bring more clarity to a potential legal problem faced by
practitioners in circumstances of signicant tension and limited time.
Originality/value – This paper provides a useful information source for practitioners faced with the
prospect of advancing or defending constructive acceleration claims, and it provides a foundation for
future related studies examining a wider scope of jurisdictions.
Keywords Contracts, Construction, Acceleration, Delay, Claims, Constructive
Paper type Research paper
Adapted from Distinction LLM Dissertation, Construction Law & Practice Masters, University of
Salford.
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1756-1450.htm
IJLBE
7,3
248
Received 22 November 2014
Revised 8 May 2015
Accepted 18 May 2015
InternationalJournal of Law in the
BuiltEnvironment
Vol.7 No. 3, 2015
pp.248-267
©Emerald Group Publishing Limited
1756-1450
DOI 10.1108/IJLBE-11-2014-0034
1. Introduction
The complexity of construction work means delays are common. Delays in construction
projects arise from an array of circumstances, including resource shortages, site access
restrictions, delayed drawings/instructions, additional works and inclement weather
(Haidar, 2011). Construction contracts typically make provision to allocate risk for
delays between the employer and the contractor. Liquidated damages clauses
compensate the employer for contractor delays. Extension of time and loss and expense
clauses provide the contractor relief from liquidated damages during periods of
“excusable” delay, and additional payment for delay related costs where the excusable
event is also deemed “compensable”. When the parties operate the contract properly,
these contractual mechanisms ought to be sufcient in dealing with project delay. Yet
commonly in practice, employers are more interested in achieving timely completion of
the project than extending the original contract completion period (Abrahamson, 2003;
Barnes, 2006). For example, a local authority might require completion of a school before
the next term or a developer the opening of a shopping centre at the start of a lucrative
festive period.
This means that when delays occur, an employer or certier may pressurise the
contractor to “accelerate” construction to complete on time (Barnes, 2006), without the
offer of remuneration. Acceleration of the works may be achieved by increasing
resources levels, increasing working hours, re-sequencing activities or introducing
temporary works (Baker, 2012;Tweeddale, 2004). Ordinarily, contractors plan works to
maximise efciency rather than minimise project duration (Cooke and Williams, 2013),
whereas acceleration measures tend to result in a substantial reduction in workforce
productivity and higher overall construction costs. If an employer or certier accepts
liability for the initial delay, there is little scope for dispute over payment for the
acceleration. However, where the employer disputes a contractor’s genuine entitlement
to a time extension, but insists on acceleration regardless, does the contractor have a
right to claim for additional costs? In the USA, the answer to that question might be a
relatively unqualied “yes”. A similar answer in other jurisdictions would have an
important implication for contracting, professional and employer organisations in
practice.
2. The doctrine of constructive acceleration
The American legal doctrine of “constructive acceleration” enables contractors to
recover acceleration costs where the employer or certier in a contract refuses to grant
genuine time extension requests, forcing the contractor to accelerate to avoid liquidated
damages (Kelleher, 2011;Department of Transportation v. Anjo Construction Co [1995];
Howard White Inc. v. Varian Associates [1960];Siefford v. Housing Auth of City of
Humbold [1974]). The doctrine emerged from American Contract Appeals board
decisions dealing with disputes under government contracts[1], which compensated
contractors where the government required acceleration even though the causes of delay
were “excusable” under the contract. A contractual, rather than a common law
interpretation of the claim was necessary because the boards were restricted to deciding
on matters within the express framework of the contract (Cibinic et al., 2006). Whilst this
justication became inapplicable after the Contract Disputes Act 1978 gave Contract
Appeals boards wider jurisdiction, American courts continue to accept the doctrine as
justication for acceleration costs. This policy remains due to a preference to deal with
249
The
acceleration
dilemma

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