Concurrent delay – true concurrent delay rarely occurs, but is when the effects of two separate delaying events, which occur at the same time, are experienced at the same time. It is more usual for two events which occur sequentially to have a delaying effect which is felt simultaneously. Difficulties arise when one delaying event has been caused by the employer and the other by the contractor, but the court has now indicated that a contractor will generally still be entitled to claim an extension of time for an employer caused delay providing it is of the type envisaged by the contract ( Walter Lilly & Co Ltd v Mackay & others [2012] EWHC 1773 ). Condition – a term of a contract which is so important it goes to the root of the contract. If it is breached by one party, the other party may regard itself as excused from further performance, and may claim damages. See also Repudiation . Condition precedent – a stipulation in a contract which has to be complied with in order for a party to be able to claim an entitlement under the relevant provision, for example to liquidated damages or an extension of time. In the absence of compliance with the stipulated requirements, a party will lose its entitlement under that particular clause. Consequential loss – a loss incurred which is not a direct or natural loss arising from a breach of contract, also known as an indirect loss (under the second limb of Hadley v Baxendale ). It used to be thought that loss of profits or pure economic loss would invariably be an indirect loss, but the courts have indicated that these losses may be direct losses depending on the nature of the contract ( McCain Foods(GB) Ltd v Eco-Tec (Europe) Ltd [2011] EWHC 66 ). Construction Act – the Housing Grants, Construction and Regeneration Act 1996 , as amended by the Local Democracy, Economic Development and Construction Act 2009.
Damages – award to an injured party designed to compensate it for loss suffered as a result of another’s breach of contract or negligence.
Deed – a document which has been executed in accordance with formalities required by the Law of Property (Miscellaneous Provisions) Act 1989 (eg a statement on its face that it is intended to be a deed, and witnessed signatures by those executing) will be valid as a deed and, as a consequence, will in most cases be enforceable without the need for consideration. A document signed under hand where consideration has been provided will be a Simple contract . Limitation under simple contracts is six years, under deeds it is 12 years. Dispute – a disagreement over something in the contract, usually relating to a perceived failure to perform or denial of entitlement. A dispute has to have ‘crystallised’ for it to be capable of referral to a dispute resolution process such as adjudication or arbitration. Notification of a claim does not of itself create a dispute, but where the claim is met by silence or a failure to respond over a period of time an inference may be drawn that the claim is not admitted ( Amec Civil Engineering Ltd v Secretary of State for Transport [2004] EWHC Civ 2339 ). Duty of care – a duty which arises in tort independently of any contractual obligation that may exist, and which requires a party to exercise a reasonable standard of skill and care when performing any act which could conceivably harm others. A duty of care will have to be established as a prerequisite to bringing a claim in negligence. Duty of care agreement – also referred to as a Collateral warranty . This is a legal instrument used to create a direct legal relationship where there would otherwise be none, for example between members of the design team and the future owner or occupier of a development. It is advisable to enter into such a direct agreement
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