Responsibility For Concurrent Delay

Claims revolving around concurrent delay are a frequently encountered problem in construction contracts. As Jeremy Glover explains, the problem of concurrency typically arises when the Contractor is in delay, but the Employer also appears to be delaying the Contract. The question then arises as to whether the Contractor is entitled to receive an extension of time in any event? There are many different answers depending on what the Contract says and which law applies.

What is concurrent delay?

The definition of concurrency that tends to find most favour is the one put forward by John Marrin QC:

"A period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency."1

The position in England and Wales

In England and Wales, Mr Justice Akenhead, in the case of Walter Lily v MacKay & Others,2 gave a clear answer to this question outlined at the start of this article:

"In any event, I am clearly of the view that, where there is an extension of time clause such as that agreed upon in this case and where delay is caused by two or more effective causes, one of which entitles the Contractor to an extension of time as being a Relevant Event, the Contractor is entitled to a full extension of time. Part of the logic of this is that many of the Relevant Events would otherwise amount to acts of prevention and that it would be wrong in principle to construe cl. 25 on the basis that the Contractor should be denied a full extension of time in those circumstances. More importantly however, there is a straight contractual interpretation of cl. 25 which points very strongly in favour of the view that, provided that the Relevant Events can be shown to have delayed the Works, the Contractor is entitled to an extension of time for the whole period of delay caused by the Relevant Events in question."

As far as Mr Justice Akenhead was concerned, there was nothing in the wording of the contract which expressly suggested that there was any sort of proviso to the effect that an extension should be reduced if the causation criterion was established. The fact that the Architect had to award a 'fair and reasonable' extension did not imply that there should be some apportionment in the case of concurrent delays. The key test was primarily a causation one.

One further justification for the English approach is that as the contract in question in the MacKay case expressly provided for an extension of time for certain relevant events, it must have been contemplated that there could be more than one effective cause of delay and also expressly agreed that a contractor is entitled to an extension of time for an effective cause of delay.

The position in Scotland

One reason for Mr Justice Akenhead's comments was to make clear that he did not accept the position which had been adopted by the Scottish courts where the preferred approach is known as the "apportionment" approach. This followed the case of City Inn Ltd v Shepherd Construction Ltd. At first instance, Lord Drummond Young said that:3

"Where there is true concurrency between a relevant event and a contractor default, in the sense that both existed simultaneously, regardless of which started first, it may be appropriate to apportion responsibility for the delay between the two causes; obviously, however, the basis for such apportionment must be fair and reasonable."

In other words, this would require consideration of the period of delay and the causative significance of each event on the works as a whole. On appeal4, Lord Osbourne took a slightly different approach concluding that if...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT