Does a tribunal have to undertake a prospective delay assessment, followed by a retrospective assessment, when reviewing the EOT decisions of a contract administrator? This may be an implication from the recent TCC case of Mace Construct.
Mace Construct Ltd v Baltic Investment Holdings Ltd [2026] EWHC 976 (TCC) involved a dispute between an employer (Baltic) and its contractor (Mace) for the refurbishment of a building in London.
The contract between them was on an amended JCT Design and Build Contract 2016 form. The contract provided for two stages during which the employer (as contract administrator) may decide on extension of time (“EOT“) and revise the Completion Date (i.e. the contractual deadline to complete the works) – namely, (a) prior to works completion; and (b) after works completion:
a) Prior to works completion, and on receiving a notice from the contractor that a Relevant Event is a cause of delay, the employer will have to grant EOT if such Event is likely to delay the completion of the works beyond the Completion Date.
b) After works completion, the employer may review its previous EOT decision and fix a later Completion Date or maintain the current Completion Date.
In both stages, the employer can only bring forward a Completion Date in the limited circumstance of there being a Relevant Omission having been issued after the last occasion on which a new Completion Date was fixed.
(Incidentally, the PAM Contract 2018 form also contains a similar two stage scheme for the assessment of EOT)
Mace applied to the English High Court for a declaration that an adjudicator and/or the court does not have the power to fix a Completion Date earlier than that previously fixed by the employer. Mace argued that – having regard to the EOT scheme in the contract mentioned above – any EOT granted prior to works completion, however incorrect, cannot be reviewed by the adjudicator and/or the court (para 47).
However, the Court declined to grant the declaration, for the reason that an adjudicator has the power to open up, revise and review any pre-completion EOT that was granted (paras 47 to 52). In doing so, the adjudicator has to “stand in the shoes of the Employer” and carry out a prospective assessment; he has to travel back in time to when the delay notice was submitted and ignore what has happened since then (paras 50, 51).
Implicit in the decision is that in reviewing a pre-completion EOT, the adjudicator may fix a Completion Date that is earlier that that previously fixed by the employer – in short, reducing or negating that EOT.
Discussion
Much has already been said about the incongruity of undertaking an exercise to project or estimate the delay that will likely be caused due to a particular event, when the project is already completed and one can instead evaluate whether any actual delay was caused.
Exploring the implications of Mace Construct from a different angle, that decision appears to be confined to a review by the adjudicator of pre-completion EOT decisions, as opposed to a review of post-completion EOT decisions. The foregoing is consistent with the requirement that the adjudicator is to place himself “back in time” as if he was in the shoes of the employer assessing EOT upon receiving the contractor’s delay notice, and to ignore subsequent events.
Accordingly, where reviewing post-completion EOT decisions of the employer is concerned, it may be open to the adjudicator to carry out a retrospective assessment instead of a prospective one. In line with the theme of the adjudicator stepping into the shoes of the employer, the latter will usually be in a position to conduct a retrospective delay analysis after works completion.
Flowing from the above, in the event of legal proceedings where both pre and post-completion EOT decisions are challenged (which occurs quite frequently), the tribunal may have to (i) first, carry out a prospective analysis to determine what the pre-completion EOT entitlement ought to be; and (ii) subsequently, carry out a retrospective analysis to review that pre-completion EOT entitlement. This “look forward” then “look back” approach will inevitably further complicate a subject which is already complex.
For completeness – although the declaration was sought in relation to the power of the “adjudicator and/or the court” (para 42), the reasoning that led to the dismissal of that declaration was based on the powers of the adjudicator (paras 49 to 52); no express mention was made of the powers of the courts. However, the House of Lords has already previously decided that the courts have the power to open up and revise the certificates of the contract administrator, as part of the court’s ordinary power to enforce the contract in accordance with its terms; see Beaufort Developments Ltd v Gilbert-Ash Ltd [1999] 1 AC 266, HL.
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