Assessing extension of time claims: does Mace v Baltic shed any light?
The recent decision in Mace Construct Limited v Baltic Investment Holdings Limited [2026] EWHC 976 (TCC) addressed a tension that arises whenever a prospectively assessed extension of time (EOT) claim is later reviewed. The Court was concerned with a very specific issue and the decision should therefore be applied with care. However, the case reinvigorated a wider discussion about the correct basis on which to review construction contract claims, by confirming that a reviewer must assess an extension of time claim on the basis required by the contract, even if that is practically difficult.
Introduction
What approach should an adjudicator or tribunal apply when reviewing an extension of time award? The method of delay analysis can significantly influence the extent of any additional time awarded, especially on complex projects where the critical path can switch over time.
If the contract mandates a prospective assessment, does an adjudicator reviewing after the events have played out and when better information is available have to ignore those subsequent events and information? That seems artificial. As one judge put it:
“Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he shut his eyes and grope in the dark?” 1
Mace Construct Ltd v Baltic Investment Holdings Ltd [2026] EWHC 976 (TCC) has reinvigorated the debate. There, the court found that an adjudicator could review an Employer’s Agent’s extension of time award but had to do so on the prospective basis required by the contract.
The case is interesting in its own right and because of the conflicting case law on the topic. Before examining the detail of the case, we will review that context.
EOT Clauses and Prospective Assessment
Extension of time clauses are an essential feature of most construction contracts. However, the certainty they provide depends on the contractual machinery operating as intended.
Standard form contracts generally provide for prospective assessment of extension of time claims, as set out in Table 1 below.
Table 1: Selected Standard Form Contracts EoT provisions
| Contract | Prospective or Retrospective | Clause Wording |
| NEC 4 ECC | Prospective |
Sub-Clause 66.2 [Implementing compensation events] [Emphasis added] |
| JCT Design and Build Contract 2016 |
2.25.1 [Fixing Completion Date] [Emphasis added] |
|
| FIDIC Yellow Book, 2017 edition | Hybrid |
Sub-Clause 3.7.2 [Engineer’s Determination] “The Engineer shall make a fair determination of the…Claim…within the time limit for determination…the Engineer shall give a Notice to both Parties of his/her determination.” However, note Sub Clause 8.5 [Extensions of Time]: |
Prospective assessment requires the decision-maker to evaluate the impact of the relevant event at the time the claim is received i.e. without the benefit of hindsight.
The draw of the light: Healthy Buildings and the seduction of hindsight
Retrospective analyses are instinctively appealing. By the time a dispute reaches an adjudicator, tribunal, or court, the actual impact of delay events can be determined with greater precision.
Unsurprisingly, some courts have taken exactly that approach. For example, Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd [2017] NIQB 43 involved the review of a compensation event under an NEC 3 contract. The contract provided for a prospective assessment. The judge, however, used hindsight, asking why he should ignore the actual cost information before him.
The facts of Healthy Buildings are peculiar, so its significance should not be overstated. The Employer failed to notify an instruction as a compensation event contemporaneously, meaning quotations were not provided until after the work was complete. The judge reasoned that the contractual requirement for a prospective analysis was inapplicable in the circumstances.
Mace v Baltic: The case for prospective approach revisited
In Mace, Baltic Investment Holdings Limited engaged Mace Construct Limited to refurbish the Baltic Exchange Building under a JCT Design and Build Contract 2016 (with amendments).
Baltic adjudicated, challenging extensions of time awarded under the contract by the Employer’s Agent. The adjudicator reduced the time awarded. Mace sought a declaration from the TCC through Part 8 proceedings that neither an adjudicator nor the court had the power to fix a completion date earlier than one previously fixed by the Employer’s Agent. It argued that the contract prescribed a prospective assessment so any review of an EOT was impossible in principle; the adjudicator would know how matters had turned out. The corollary of this argument highlighted its boldness. If Mace was right, a prospectively granted EOT would be final, potentially leaving an Employer “eternally saddled with an erroneous extension of time.”
Unsurprisingly, the court rejected this. It:
- Noted that, under the Scheme for Construction Contracts (the applicable adjudication rules), the adjudicator had power to “open up, revise and review” decisions taken under the contract.
- Decided that, when reviewing the EOT, the adjudicator was required to “stand in the shoes” of the Employer/ Employer’s Agent and perform the task required under the contract.
- Concluded that here, that meant performing a prospective assessment by reference to the material available at the relevant time.
The Court acknowledged that disregarding subsequent events was difficult but categorised this as a practical issue that did not rule out a review in principle. The adjudicator retains the power of review but is required to apply the methodology of the contract.
The ‘right’ answer factually or contractually
Which court got it right? Can the contractual provisions be discarded when convenient?
From the perspective of a factual enquiry, a retrospective approach is clearly better. A decision-maker conducting a retrospective analysis can assess what caused the delay, and for how long: conclusions that a prospective assessment can only approximate.
The contractual answer should nonetheless prevail. The certainty that EOT clauses are designed to deliver depends on the prescribed contractual methodology applying. Where sophisticated commercial parties have agreed to a prospective assessment and accepted the associated risks, tribunals should not unpick that.
However, much will depend on the precise issue in dispute. Mace concerned a specific enquiry: what EOT should the Employer’s Agent have granted under clause 2.25.1? Where that is the question, the task is to replicate the contractually prescribed exercise. With another question, the position may be different. For example, a dispute regarding whether the Employer is entitled to a certain figure in delay damages may merit a retrospective analysis.
The courts have acknowledged this distinction:
“There has been an extensive debate about the correct approach to delay analysis…a prospective analysis – in other words considering the critical path at any particular point in time as viewed by those on the ground at that time – does not necessarily produce the same answer as an analysis carried out retrospectively. The former is the correct approach when considering matters such as the award of an extension of time, but that is not the exercise with which the court is concerned in this case. I agree that some form of retrospective analysis is required.” 2
The framing of a dispute therefore needs careful attention at its outset.
Conclusion
The case confirms that extension of time awards can be reviewed and re-assessed after the fact. Importantly, it also confirms that this exercise should follow the methodology set out in the contract, rather than whatever approach the reviewer finds most convenient or accurate. The benefit of hindsight is seductive, but the guiding light is ultimately the contract itself.
However, the decision is not without difficulty. The court confirmed that if a prospective assessment is required by the contract, the reviewing court or tribunal must effectively travel back to the point in time when the original assessor would have determined the claim. The court acknowledged that this was practically difficult, not least because it would mean the reviewer had to disregard subsequent events completely. Unfortunately, if not unsurprisingly, the court did not offer any guidance about how courts, tribunals or adjudicators should time travel.
James Phelan, Trainee Solicitor, co-authored this article.
Footnotes
- Bwllfa and Merthyr Dare Steam Collieries v Pontypridd Waterworks Co [1903] AC 426
- Fluor v Shanghai Zhenhua Heavy Industry Co Ltd [2018] EWHC 1 (TCC)
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