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Mouchel Infrastructure Services

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The “Prevention Principle” is Alive and Kicking

The Scottish Decision in City Inn v Shepherd Construction in which it was decided that where concurrent delays occurred an apportionment of delays approach is to be taken, appeared to contradict previous decisions which adopted the “prevention principle”.

The “prevention principle” determines that a party cannot benefit from its own breach of contract. Put simply, one party to a contract cannot rely on the other party’s performance of an obligation under the contract between them if the cause of the non-performance is of the former’s own making.

The “prevention principle” has been a part of English Law for a long time, albeit its origin is unclear. One of the very early construction cases involving the “prevention principle” was in Holme v Guppy in 1838.

The “prevention principle” has recently been upheld in the Technology & Construction Court by Mr Justice Edwards-Stuart in the case of DeBeers UK Limited v Atos Origin IT Services UK Limited.

This was a case involving computer software systems which similar to construction contracts often over-run. The contract between DeBeers and Atos included both extensions of time and delay costs provisions. The judgement determined that Atos were entitled to extension of time for delays for which both DeBeers and Atos themselves were responsible and that Atos were not entitled to delay costs due to them being in part to blame for the delays.

Trevor Brant, May 2011