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Court Refuses to Imply Obligation to 'Hurry Up'
09-Jan-2012 The Technology and Construction Court (TCC) has refused to imply a contractual term requiring a sub-contractor to proceed regularly and diligently. In Leander Construction Limited v Mulalley and Company Limited (2011), the contractor (Mulalley) sought to justify such an implied term (and it’s consequential withholding of sums due to Leander for alleged breach of such term) on the ground that the contract contained an express right to terminate if Leander did not proceed regularly and diligently.The TCC rejected this argument, stating that:
a) the requirement that an implied term be “necessary to give business efficacy” to the contract had not been satisfied; and
b) there was no previous case law in which such a term had been implied where, as was the case here, the contract contained a contractually binding final completion date.
This case then is further confirmation of the general principle that “in the absence of any indication to the contrary, a contractor is entitled to plan and perform the work as he pleases, provide that he always finishes by the time fixed in the contract”. Accordingly, any requirement for the contractor to meet interim key dates need to be carefully drafted.
For any more information regarding this case, or legal advice on the matters it raises contact Simon Franklin
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