Time at large, and why it is claimed more than it succeeds

Time at large means there is no longer a fixed date by which the works must be completed. The contractor’s obligation becomes one to complete within a reasonable time, and because there is no completion date, liquidated damages cannot be calculated and cannot be deducted.

That consequence is why it is argued so frequently and conceded so rarely.

How it can arise

The classic route is prevention. If the employer causes delay and there is no contractual mechanism to extend the completion date for that cause, the employer cannot hold the contractor to a date it prevented them from meeting.

The second route is failure to operate the machinery. If the contract provides for extensions and the certifier simply does not assess them, the argument is that the mechanism has broken down and the date can no longer be fixed.

Why it usually fails

Because modern standard forms are drafted specifically to prevent it. The relevant events list includes acts of prevention by the employer, precisely so that any employer-caused delay has a contractual route to an extension. Where there is a route, the prevention principle has nothing to bite on.

The failure-to-assess route is narrower than it looks too. A late assessment is a breach, and breaches generally sound in damages rather than destroying the completion date. Courts are reluctant to hand a contractor an open-ended completion obligation because a certifier was slow.

Where it has more traction

• Bespoke or heavily amended contracts where the extension of time clause has been narrowed and no longer covers employer acts.
• Contracts with no extension mechanism at all, which still exist on smaller work.
• Situations where the employer instructs substantial additional work with no route to extend the date.

That first one is worth noting. Amendments that strip out relevant events to make the contract more employer-friendly can reintroduce exactly the risk they were meant to remove.

What follows if it succeeds

Liquidated damages go. General damages do not: the employer can still claim its actual loss caused by the contractor failing to complete within a reasonable time, and it must prove that loss.

What counts as reasonable is judged on the facts. It is not an invitation to take as long as one likes.

The practical protection

For an employer or certifier the answer is procedural and simple. Assess extension claims within the contractual period, on the information available, and write down the reasoning. A file showing that every notice was assessed and every decision explained is the answer to a time at large argument, and it is built one entry at a time rather than assembled at the end.