Concurrent Delay ' What Is The Right Test?

• Published date: 13 April 2023
• Subject Matter: Corporate/Commercial Law, Real Estate and Construction, Contracts and Commercial Law, Construction & Planning
• Law Firm: Fenwick Elliott LLP
• Author: Mr Edward Foyle and Shahed Ahmed

Even relatively simple construction projects regularly suffer a whole host of delays to activities. For complex projects, the interface between delays to various sequences of works - and establishing which activity is the cause of critical delay (i.e. actually causes delay to project completion) - is extremely complex. Identifying which issues are critical requires sophisticated expert delay analysis and detailed input from factual witnesses. Invariably, this is an expensive - and time consuming - process.

In English law, it is generally accepted that, where a project suffers from a period of "concurrent delay", the contractor is entitled to an extension of time (such that the employer is not entitled to claim liquidated damages). However, the contractor is not entitled to recover from the employer its prolongation costs. However, as demonstrated by the recent judgment in Thomas Barnes v Blackburn, the meaning of "concurrent delay" may be more open to debate.

In contrast, there is no guidance in UAE law specific to the resolution of concurrent delay claims which will be decided under general legal principles, including good faith and concepts of fairness.

The meaning of "concurrent delay": true concurrency

A line of English lower court authorities established a very precise meaning for "concurrent delay", see Royal Brompton Hospital NHS Trust v Hammond (No 7) (2001), Adyard Abu Dhabi v SD Marine Services [2011] and Saga Cruises Ltd v Fincantiera [2016]. Those cases make clear that true concurrent delay will only arise in the following circumstances:

• Two delay events (one a contractor risk, the other an employer risk) occur at the same time;
• The effect of those two events, in terms of overall delay to the project, are felt at the same time.

Unsurprisingly, the occurrence of true concurrent delay is rare. It should be distinguished from:

• A situation in which two events cause delay to a contractor's activities at the same time, but only one of those activities is on the critical path, such that only one event causes critical, or actual, delay; and, also
• A situation in which two events cause delay to critical activities at the same time, but although the effect of the delay event is felt at the same time, one of the events occurred prior to the other.

In the second example above, there is no concurrent delay due to the first-in-time principle. The essence of the first-in-time principle is that, by the time that the second event occurred, it could not cause any actual delay to the contractor's works, because the contractor was already in delay anyway as a result of the first event. The example provided in Royal Brompton, and cited with approval in later cases, is where a contractor knows that it will be unable to progress works in a particular week because it has no workforce. The occurrence of inclement weather the following week (often an employer risk) will not be a concurrent cause of delay because the contractor was already unable to progress the works in that week in any event. Another frequently cited example is the late instruction of a variation by an employer, which would have pushed the completion date for the project if the contractor were not already delayed by reasons for which it...