Construction, Dispute Resolution

The legal reality of site delays: who carries the risk?

Written by: Samuel Okoronkwo

Published on: May 5, 2026

Most contractors assume that delay risk on construction projects is shared.
In practice, it rarely is.

That misunderstanding is often where avoidable financial exposure begins.
In construction, time is not just a scheduling concern; it is an asset with a defined financial consequence when it is lost or mismanaged.

When a site goes quiet or a trade does not turn up, the immediate focus is usually on the programme impact and how quickly progress can be recovered.

But the real issue is this: who is carrying the financial risk for that delay?
Under standard form contracts such as JCT or NEC, delay risk is not distributed evenly in practice. It shifts depending on compliance with procedural requirements, contractual classification, and evidential support.

If you are not clear on who that is at any given moment, you are likely already exposed.

The reality: how delay risk actually shifts

To understand who carries delay risk, three points matter more than anything else:

Notice provisions are not optional

In many contracts, giving notice is a condition precedent. This means if you miss the deadline for notifying a delay, you may lose your entitlement to an extension of time altogether. It does not matter how obvious the delay was on site; if the notice is not compliant, the contractual right does not exist.

Not all delays are treated equally

Risk depends entirely on causation. Is it a Relevant Event, entitling you to time relief only? Or is it a Relevant Matter, potentially allowing the recovery of loss and expense as well? The distinction is not academic. It determines whether you are simply avoiding damages or actively recovering your costs.

The burden of proof rests on the claiming party

It is not enough to say the project was delayed. You must demonstrate what caused the delay, how it affected progress, and crucially, how it impacted the critical path. Without that evidence, delay arguments rarely succeed in adjudication.

How to protect your position

If you are currently managing a delayed project, three actions matter immediately:

Check your notice deadlines: Identify exactly how many days you have to notify the other party after becoming aware of the delay.

Identify the contractual cause: Is this employer risk, neutral risk, or contractor risk? The label dictates your financial recovery.

Lock down your critical path evidence: If you cannot demonstrate programme impact clearly, entitlement becomes very difficult to prove later.

Most construction delay disputes are not caused by the delay itself; they are caused by how poorly the delay is managed in real time. By the time the project finishes, it is often too late to fix the contractual position, no matter how strong the factual story is.

Beyond delay: where many outcomes are ultimately lost.

Even if you manage the delay perfectly and secure a favourable adjudication decision, the work is not finished.

Many assume that a decision is the end of the road when, in reality, it is often just the beginning of a new challenge: Enforcement. Just as a missed notice can derail your delay claim, a procedural error during the process can make your “win” unenforceable in the Technology and Construction Court.

Following our sessions on adjudication strategy, my next webinar focuses specifically on this final hurdle: What happens after the decision.

I will be sharing how to protect your position when enforcement is at stake, how to navigate jurisdictional challenges, and how to ensure the result you fought for actually sticks.

Construction Series Part 4: The Adjudicator’s Decision Securing Finality and Payment through Effective Enforcement in the TCC
Wednesday, 20 May 2026 | 7 PM UK

Register for the Webinar Here