Concurrent Delays

• Law Firm: HKA
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning
• Author: Mr Michael McSorley and Imran Chaudhary
• Published date: 08 March 2023

The term 'concurrent delays' was defined by Mr. John Marrin QC as quoted below.¹ This definition was later approved by the English court.²

"The expression 'concurrent delay' is used to denote a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency".

The cause or an event is 'effective' if it impacts the project completion date. In circumstances, where Event A is already delaying the project completion date, can a subsequent Event B, which is of equal causative potency as that of Event A and that would have delayed the project completion had Event A not arisen, be considered an effective cause of delay and therefore a concurrent delay situation?

The issue of concurrent delay was discussed in English courts in Henry Boot,³ Royal Brompton,⁴ Walter Lilly,⁵ Saga Cruise⁶ and Adyard Abu Dhabi.⁷

In Saga Cruise,⁸ the project overran from 2 to 16 March due to the contractor's delay. The employer levied delay damages for the period of project overrun. The contractor submitted that various employer delay events were concurrent with its delays with the aim of avoiding or reducing the delay damages imposed. The Judge Sara Cockerill did not agree that the employer's delay events, which would have independently caused project overrun between 2 and 11 March, was concurrent with the contractor's delay. The underline reason given by the Judge was that the two delays did not 'cancel out' each other.⁹ In other words, the two delays did not cause the same period of project overrun. Generally, the Saga Cruise approach has been the approach used to understand the meaning of concurrent delays in England.

However, on 17 October 2022, England's Technology and Construction Court (TCC) issued a judgment that appears to contradict the Saga Cruise approach. In Thomas Barnes & Sons Plc (in Administration) v Blackburn with Darwen Borough Council, ¹⁰ TBS was the Contractor and the claimant; and Blackburn was the Employer and the defendant. One of the disputes related to a concurrent delay disagreement.

The project was for the construction of a bus station that was largely divided into two areas: first 'the hub' that provided office space on the ground floor and mezzanine first floor; and second 'the concourse' area that provided waiting space and access to buses. The building structure of the bus station was to be constructed using a structural steel frame. The structural steel framework forming the walls of the hub and the concourse were to be built using the steel frame sections (SFS). As in most construction projects of this nature, the critical path of the bus station works ran through...