The acceleration dilemma: can English law accommodate constructive acceleration?

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 certifier 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 certifier’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 significant 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.