TCC Issues New Decision Addressing The Definition Of Concurrent Delay

• Published date: 31 October 2022
• Subject Matter: Real Estate and Construction, Construction & Planning
• Law Firm: Duane Morris LLP
• Author: Mr Vijay K. Bange, Chris J. Chasin, Owen Newman and Steve Nichol

Concurrent delay occurs whenever two or more separate events - at least one of which is an employer risk event and at least one a contractor risk event - independently delay the critical path of a project.

The substantial majority of standard form construction and engineering contracts are silent as to either the definition of or apportionment of responsibility for concurrent delays, and it is generally rare for parties to seek to include language to that effect by way of bespoke amendment. This reluctance to legislate for concurrent delay in contracts probably reflects the inherent difficulty in formulating language that would adequately address what is always a complex and necessarily heavily fact-dependent issue.

Nevertheless, the consequence of this widespread lack of contractual language is that issues concerning concurrent delays are usually left to be determined by the law of the contract.

Traditionally, the cases raising concurrency in the Courts of England and Wales have concerned concurrent delays by a contractor that is claiming an extension of time against an Owner. In the seminal case, Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [1999] 70 Con. L.R. 32, the Court recognized that in such a situation the Contractor would be entitled to an extension of time but not to prolongation costs.

The determination of what is required for two delays to be concurrent under English law, however, has remained unclear.

The preferred approach, the "dominant cause approach", assigns liability to whichever delay is the "effective, dominant cause" of the critical path impact. If there is such a dominant cause, the delays are not concurrent; concurrency occurs only when both delays are of "approximately equal causative potency." North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744; H. Fairweather & Co Ltd v London Borough of Wandsworth [1987] 39 BLR 106 (OR).

A contrary line of cases, however, has resolved apparently concurrent delays based on a first-in-time approach under the reasoning that a subsequent concurrent delay does not actually effect the completion date of the Works: Royal Brompton Hospital NHS Trust v Frederick A Hammond & Ors [2000]. Under this approach, true concurrency would require that "both events in fact cause delay to the progress of the works and the delaying effect of the two events is felt at the same time." Id. Note that this approach does not require the events themselves to be concurrent, only the...