Key takeaways
Employers may challenge their own EOT assessments
Employers can seek for an adjudicator to open up and revise prospective EOT assessments made during the works.
Adjudicators must replicate the contractual EOT assessment
The adjudicator must step into the shoes of the assessor and assess EOT claims prospectively, where the contract requires it.
The courts will seek to give effect to all parts of a contract
The courts will operate on the basis that all provisions forming part of the contract were intended to have some effect.
In the case of Mace Construct Ltd v Baltic Investment Holdings Ltd [2026] EWHC 976 (TCC), the court considered the extent of an adjudicator’s powers in respect of previously awarded extensions of time (EOT) by an employer, alongside matters of contractual interpretation.
The facts
The relevant factual background is set out in summary below.
Mace was employed by Baltic under an amended JCT Design and Build 2016 form of contract to carry out and complete refurbishment works at the Baltic Exchange Building in London.
The documents comprising the contract were listed out in a contents list, incorporated into the contract, which included the employer’s requirements (the ‘ERs’), the contractor’s proposals, along with some tender queries and a schedule of derogations.
Clause 1.3 in the standard JCT terms was amended to provide that nothing in any other contract document would override or modify the agreement, the conditions or the schedule of amendments and that the schedule of amendments would take precedence in the event of any discrepancy.
The contract incorporated the standard JCT extension of time provisions with the employer’s agent obligated to adjust the completion date to a date he estimated was fair and reasonable on receipt of the notice and supporting particulars.
During the works, the employer’s agent (acting on behalf of Baltic) made a prospective assessment in accordance with the JCT terms, extending the date of completion by seven weeks and five days, which was due to changes in the design of the works and/or the need for additional approvals and/or consents.
Baltic sought to reopen this extension in adjudication proceedings between the parties.
The appointed adjudicator was satisfied that he was entitled to open and revise this decision and determined that Mace had no entitlement to an extension.
Following the adjudicator’s decision, Mace commenced part 8 proceedings seeking various declarations concerning the proper construction of the parties’ contract and the adjudicator’s powers as regards to extensions of time.
The issues
In brief terms, the court was invited to make declarations in respect of:
the agreed allocation of risks and responsibilities as to design and consents, specifically, whether this was to be determined by reference to the schedule of derogations and tender query documents (accepted by the parties as forming part of the contract) and not merely the amended JCT terms due to the amended clause 1.3 (as noted above)
Mace’s design responsibility in respect of the items identified in the schedule of derogations at the time of the contract
Mace’s design responsibility up to the point of Baltic approving and instructing the design solution for the items identified in the schedule of derogations.
In addition, and more interestingly, Mace sought a declaration that the adjudicator and/or the court did not have the power to fix a completion date earlier than one previously fixed by the employer’s agent, pursuant to the relevant terms of the (amended) JCT terms of contract.
The decision
In granting the declarations sought by Mace relating to its design risk, the court was satisfied that:
it must seek to give effect to the entirety of an agreement and it was entitled to look with scepticism at any proposition that carefully agreed bespoke provisions should not be operated as seemingly intended
the parties had clearly agreed that Mace’s obligations in respect of the items identified in the derogation schedule would be in some way limited
it was also clearly intended that there would be a process of ‘to and fro’ on the design of these items, which would be concluded with an instruction
the schedule of derogations was not overridden or superseded by, nor was it inconsistent with the JCT terms. Instead, this schedule defined, qualified and clarified Mace’s design responsibilities for the specific items identified.
As to the adjudicator’s powers, it was submitted by Mace, that:
under the JCT terms, the exercise to be performed by the employer’s agent when assessing an extension of time application was prospective (i.e., it was an estimation as to the future effect or impact of relevant events that had already occurred),
in effect, an adjudicator, or the court, could not carry out a prospective assessment as required by the relevant clause, it could only consider the matter retrospectively, knowing how matters had turned out.
Essentially, therefore, Mace’s position was that you cannot retrospectively assess a prospective assessment.
In dismissing this aspect of the case and declining to grant the declaration sought, the court held that the adjudicator’s powers, as set out in the Scheme for Construction Contracts (England and Wales) Regulations 1998, as amended (the “Scheme”), were clear.
Those powers, which are incorporated into the standard JCT terms, entitle an adjudicator to open up, revise and review any decision taken or certificate issued, unless the contract clearly stated that this decision or certificate was final or conclusive.
Accordingly, it was not right that an employer would be “eternally saddled with an erroneous extension of time” as the court put it.
However, and in agreeing with the submission advanced on behalf of Baltic, the court held that in exercising such powers under the Scheme, the appointed adjudicator was to carry out the task required by the clause. In this case, applying the standard JCT terms, the adjudicator’s role was therefore to reassess the extension application on a prospective basis, with the court noting that:
this may be difficult task for the adjudicator, who has to travel back in time to the time at which the notice and particulars were submitted under clause 2.24. This requires him to ignore what has happened since that date. However, these all seem to me to be points as to the evidence and procedure which the adjudicator should consider and adopt.
Commentary
The decision serves to reinforce the overarching principle that decisions taken during construction works are generally capable of review and revision, absent a clear and express agreement to the contrary. Contractors should therefore take the decision as a reminder against over-reliance on employers’ assessments during project delivery, including assessments as to additional time and payment, ensuring detailed records are preserved and maintained and that they are prepared to defend any subsequent challenge made.
In addition to reaffirming the wide powers conferred upon adjudicators under the Scheme, the decision illustrates the practical challenges adjudicators likely face when opening up prospective EOT assessments made during the works. The natural (and most obvious) starting point would be to consider what actually happened, a process the court here has suggested must not give way to a consideration of what could have been determined at the material time.
This also raises important considerations for the parties to an EOT dispute in terms of how their cases should be presented and, as always, on the importance of preserving contemporaneous records with both prospective assessment and hindsight analysis in mind.
To answer the question of when EOT assessments are irreversible: the short answer is they rarely are unless the contract expressly provides for that finality.
Our Construction and Engineering team advises employers, contractors and consultants at every stage of the project lifecycle, including complex EOT and adjudication issues. If you would like to discuss the implications of this decision, please contact us to find out how we can help.
