Article by Mark McTighe
Tudor Rose is frequently instructed at the end of a project to consider a claimant’s entitlement to an extension of time, the matter having been largely ignored by the Employer, Architect or Contract Administrator during the course of the works and only becoming an issue during the assessment of the final account. The question commonly faced by a claimant was which delay analysis methodology should be adopted. It was long thought that some form of prospective analysis should be preferred following the decision in Adyard Abu Dhabi v SD Marine Services,[1] albeit this still left some tensions when trying to agree a claimant’s entitlement.
The recent Part 8 decision of the TCC in Mace Construct Limited v Baltic Investment Holdings Limited [2] has provided some useful guidance on the assessment of extensions of time under the JCT 2016 Design and Build Contract and the power of tribunals to review those decisions.
Why “wait and see”?
It is not uncommon for Employers and Contract Administrators under the JCT form[3] to hesitate before providing prospective assessments of extension of time. This usually results in the piling up of unassessed claims, frayed relationships between the parties, and a significant amount of work left to do at the final assessment stage (with the corresponding increased risk of formal dispute as matters which could have been dealt with contemporaneously come to a head). Although these behaviours cannot be traced to one single cause, certain aspects of the JCT Contract may help to explain them:
- The period under which the Employer is required to make a decision is generous (12 weeks under the 2016 form, 8 weeks under the 2024 form). The temptation to wait until the impact of the delay is better known before making a determination is therefore clear.
- The (not always unfounded) perception that prospective assessments favour the contractor by producing a “worst-case” model of a delay which has not yet transpired.
- Clause 2.25 does not contain any deeming provision or other mechanism to bring the decision-making process to a close should the Employer or Employer’s Agent be tempted to drag their heels.
- Clause 2.25.5.1 gives the Employer or Employer’s Agent power to grant a further EOT at completion. It is therefore easier to grant shorter (or no) interim EOT and set a later date at Completion if required.
- The ascertainment of loss and expense (despite being a separate contractual process from EOT) is an inherently retrospective exercise and is usually at the forefront of both parties’ minds when undertaking delay analyses.
Where EOT claims have piled up to be assessed at the final account stage, the assessments are then often undertaken retrospectively (in tandem with the assessment of loss and expense), based on the perceived actual impact of the delay on the date of practical Completion. However, the decision in Mace v Baltic suggests that this may not accord with the Contract.
The case
Mace sought declarations on a number of disparate matters in relation to an adjudication decision dated 2 September 2025 but, for present purposes, Declaration 7 is of particular interest, which was sought in the following terms:
“An adjudicator and/or the court does not have the power to fix a completion date which is earlier than that which has previously been fixed by the Employer’s Agent, by virtue of clause 2.25.4 and/or clause 2.25.5.2 of the Contract”
Mace argued that the exercise to be undertaken pursuant to clause 2.25.1 is a prospective one, and that the Employer is fixed with this extension of time (absent any Relevant Omissions) for the rest of the contract and even during the final assessment under clause 2.25.5. Up to this point, the court agreed with Mace’s submissions.
However, the court did not agree with Mace’s “…bold further submission…” that an EOT granted under clause 2.25.1 cannot be opened up by an adjudicator or the court. Mace’s argument was summarised as follows:
“The core of this submission appeared to be that the adjudicator or the court would never be in a position to carry out the prospective exercise required by clause 2.25.1 but would be looking at the matter retrospectively, knowing how matters had turned out.”
The court agreed with Baltic’s submission that what was actually required was for the tribunal to “stand in the shoes” of the Employer or Employer’s Agent making the determination under clause 2.25.1:
“The Adjudicator can open up, revise and review the extension of time granted under clause 2.25.1, but, in so doing, he is to carry out the task which that clause requires, i.e. a prospective assessment in response to the notice and particulars submitted under clause 2.24.”
In refusing to grant Declaration 7, the court concluded that the potential difficulties in travelling back in time to adopt this approach “are not objections of principle to the adjudicator carrying out his reviewing function under paragraph 20 of the Scheme”.
The case firmly underlines the prospective nature of the assessment under clause 25.1, should give Employers and/or Employers’ Agents some comfort that they will not be “eternally saddled with an erroneous extension of time” where prospective assessments have been made as envisaged by the Contract. Although confirming that the Employer/Employer’s Agent’s power is limited to fixing a later date under clause 2.25.5.1, the court’s decision that a previous decision can be opened up by a tribunal if necessary and a lesser EOT decided should reduce the incentive by assessors to “wait and see”.
Challenging the decision, or the outcome?
The decision may also have ramifications for parties and their representatives involved in claims or disputes over EOT following Completion of the works.
The traditional approach has often been to focus on whether the outcome (the total EOT) was correct with the benefit of hindsight, and whether the cumulative total EOT was greater than that previously awarded. By contrast, the court in Mace v Baltic has emphasised that in some circumstances the parties may need to focus their arguments on whether the decision was correct, based on the information available at the time.
This slight alteration in perspective will require parties to scrutinise the contemporaneous information (notices, programmes, records) to establish a fair and reasonable assessment, given what was known at the time it was made.
This also raises the question of whether prospective assessments are required where, for whatever reason, an EOT was not assessed contemporaneously. This may include where the Employer has not made an assessment of a notified delay (for some combination of the reasons listed above), or where there was a disagreement over entitlement which was later resolved.
In this scenario, given that there is no decision to open up, a prospective assessment would require determination of the point when a decision “should have” been made in order to draw a line between information which was and was not available at this time. For example, this may be the date on which the delay became apparent, the date it was notified, the date particulars submitted or the date on which the decision “should” have been made (where the process has run to that point).
It is submitted that, given the narrow nature of the Part 8 declaration and the potential varied factual matrix of disputes arising under the Contract, the decision does not necessarily create a universally applicable rule for all delay analysis relating to JCT Contracts. However, parties and their representatives will have to carefully consider the nature of the EOT being disputed. This may also produce a mis-match in the way disputed historic EOTs are assessed, where some delays have been assessed (and the decision can be challenged) and some have not (and the assessment is a “blank slate”).
Given the potential for scrutiny of what was known at the time an assessment was made, Contractors submitting particulars should be very clear what is being relied upon in their own assessment, and why. Conversely, Employers or Contract Administrators making their own assessment will need to document what is (or is not) being relied upon. The quality of the particulars relied upon, and the analysis applied to those particulars, may come under increased scrutiny where the decision taken at a point in time is the subject of a later dispute.
Another point brought into sharper focus is the importance of claimants advancing EOT claims timeously. We are frequently instructed by clients who hold back from advancing claims early in a project for fear of souring otherwise good relationships. While the decision in FES Ltd v HFD Construction Group Ltd[4] confirmed, in the context of the relevant SBCC/JCT wording, that notice was a condition precedent to recovery of loss and expense, the decision in Mace should also emphasise the importance of advancing timeous and robust claims for an extension of time; after all, if the argument is that the party responsible for assessing the delay is to do so prospectively, there may be a case to be made that a greater EOT was not due at that stage if the claiming party had not then advanced sufficient particulars. Consistent and reliable records and programmes will therefore be central to demonstrating entitlement.
Alignment with Loss and Expense
Extension of time rarely exists in a vacuum; a claim for an EOT will usually go hand-in-hand with a claim for loss and expense where the Relevant Event is also a Relevant Matter under the JCT Contract. One aspect not considered by the court (as it did not form part of the Declaration being sought) was how the court’s reasoning could impact the claiming party’s corresponding loss and expense claim.
Clause 4.20.1 requires the Contractor to submit an “initial assessment of the loss and/or expense incurred and any further amounts likely to be incurred”. This is broadly similar to the estimate required under clause 2.25. However, clause 4.20.2 goes further, requiring further monthly updates “until all information reasonably necessary to allow ascertainment of the total amount of such loss and expense has been supplied.”(emphasis added)
The wording of the Contract therefore results in a mis-match between the assessment of time and cost for the same event. EOT is estimated (pursuant to clause 2.25.1), but the loss and expense flowing from the EOT is ascertained (pursuant to clause 4.20.3). It is submitted that ascertainment is an inherently retrospective exercise, which may sit uncomfortably with a prospective assessment of the corresponding delay when analysed with the benefit of hindsight.
This mis-match is often corrected through the common practice of assessing EOT claims retrospectively at the final account stage of the Contract, effectively putting the time and cost assessment on an equal footing. Parties may now need to consider a separate, retrospective exercise to determine when delays actually occurred and crucially, when those delays were causing critical delay. Therefore, a hybrid approach to delay analysis may actually satisfy both requirements.
However, it could be argued that this contrasting approach achieves an element of balance. The Contractor is entitled to certainty on its relief from damages as was (or should have been) foreseen at the time, allowing the Contractor to plan its works productively and efficiently. The costs are dealt with retrospectively which prevents either party from receiving a windfall from an estimate which turns out to be incorrect with the benefit of hindsight. However, it may also produce “competing” delay analysis, where a retrospective analysis is required in any case to support ascertainment of loss and expense.
Implications for NEC Contracts
There has been some speculation that this decision also reinforces the prospective nature of assessment under NEC4, weakening the application of the Northern Ireland v Healthy Buildings[5] case (which neither party appeared to cite in Mace v Baltic) which supports the position that tribunals should not ignore actual information when assessing a compensation event.
The NEC4 suite contains its own mechanism for moving the Completion Date (compensation events) and the criteria for assessment are set out at clause 63.5. Whilst this is frequently “over-interpreted” as requiring a time impact analysis despite this not being specified, clause 63.5 taken together with the tight timescales (relative to JCT) for notification, quotation and assessment result in a prospective assessment in practice where all parties have adhered to these time periods. This is reinforced by the requirement for the Contractor to include risk (clause 63.8), further reducing the incentive for the parties to “wait and see”.
However, as with JCT, the position may not be quite so clear where the compensation event has not been contemporaneously implemented. Arguably more so than JCT following the decision in Mace v Baltic, as the word “estimate” (or “forecast”) does not appear at clause 63.5 of the NEC4 contract.
A crucial distinction from JCT is that time and cost are dealt with together under NEC. Therefore, CEs implemented contemporaneously will likely have some element of forecast cost (corresponding to the forecast delay) and there is no additional requirement to retrospectively ascertain the actual defined cost incurred at the end of the contract where a quotation for a CE has been accepted. Therefore, whether prospective or retrospective, the NEC Contract requires the assessment of time and cost to go hand in hand, and clients and tribunals may be less willing to go back in time to the dividing date and estimate both movement to the Completion Date and defined cost, given that there is no mechanism to prevent the windfall of a prolongation assessment which turns out to be incorrect with the benefit of hindsight.
It is therefore likely that the decision in Northern Ireland v Healthy Buildings will continue to be influential in emphasising the importance of as-built records for disputes under the NEC contract in particular.
The death of the wait and see approach?
The tendency to “wait and see” is driven as much by deeply ingrained behaviours as by the wording of the Contract and the decision in Mace v Baltic is unlikely to change these behaviours overnight. However, the decision re-emphasises the importance of contemporaneous records, especially since there may be increased scrutiny not just on the decision reached, but the basis on which that decision was made.
If you would like any more information on this article or to discuss it further, please contact Mark directly.
[1] [2011] EWHC 848 (Comm)
[2] [2026] EWHC 976 (TCC)
[3] This article will focus on JCT 2024 design and build, but the principles discussed are equally applicable to other JCT forms
[4] [2024] CSOH 20 and [2024] CSIH 37
[5] Despite being a Northern Irish case, this is persuasive under English Law and commonly cited in time and cost disputes under NEC contracts. Although the case primarily concerned costs, the interrelated nature of cost and time assessment under the NEC resulted in this argument frequently being deployed in support of the proposition that actual delay data should not be ignored either.
