One effect of an event on a project may be for it to produce concurrent delay. However, what do we mean by this term, as there is lack of industry or legal definition. Mervyn Raybould discusses this topic
The Meaning of Concurrency?
At the present time within the construction industry (and arguably the courts) and notwithstanding the introduction of the SCL Protocol, there is a lack of definition relating to the term “concurrent” delay. It can be argued that concurrent delay [that is, the time effect of a causative event] will only occur when two or more delays are running simultaneously. These delays can be employer-caused delays, contractor-caused delays or a combination of both. The important point is that concurrent delays run simultaneously, irrespective of who caused them. Concurrent delay can also occur where the effects of several causative events occurring at different times (i.e. variation introduced in week 1, late drawing issued in week 2) produce delay at the same time (i.e. in week 5).
A consideration of concurrent delay is that the concurrent delays may have different weightings with regard to the significance of their impact on construction and therefore on the completion date i.e. different construction activities affect the completion date in different ways and by different amounts. Hence, concurrent delays may extend the completion date by different amounts even if the concurrent delays are the same length. This point is often referred to as the dominant cause approach, but it did not find favour in the case of H Fairweather & Company Ltd v L B of Wandsworth (1987). However, it has been said that if concurrent delay in considered in the context of the English law principle of causation, then the Fairweather decision is wrong.
Another term we need to be aware of is culpable delay, which is any delay for which the contractor is responsible, even where the effect of the culpable delay is running concurrently with an employer-caused delay. It is arguable and even likely that consideration of culpable delay will be case and/or contract specific. We need to consider in each case whether the causative event and the effect of the event (i.e. its delay) should be considered together or separately. This distinction between cause and effect is of increasing importance in delay analysis.
A further consideration is that in some standard form contracts, the Certifier has discretionary powers relating to the granting of an extension of time to the completion date but the extent of such discretion in the context of concurrent delay remains largely unexplored.
As the subject of delay analysis becomes more sophisticated, judges and arbitrators may begin to consider these distinctions and provide clearer guidance on the issue of the concurrent effect of several competing causative events. It should be noted that the UK’s Society of Construction Law (SCL) Delay and Disruption Protocol partially recognises the problem of definition of concurrency but accepts in Guidance Note (“GN”) 1.4.2 that
“Concurrency is a contentious issue both because there are differing views on the correct approach to concurrency when analysing entitlement to EOT and because there are differences about the meaning of concurrency itself.”
Cases
In the following brief case summaries, the following conditions applied with respect to granting extensions of time:
i. that an employer-caused event had occurred; and
ii. the employer-caused event delayed completion of the works as a whole beyond the completion date then fixed under the contract.
These cases are not necessarily specifically related to concurrent delay nor do they all consider the effect of concurrent delay however, they are relevant to the methodology for establishing an extension of time and as such need to be considered in the context of concurrent delay.
Balfour Beatty Building Ltd v Chestermount Properties Ltd (1993)
In this case, it was accepted that a contractor is entitled to an extension of time to the completion date for an employer-caused delay occurring after the date by which the contractor ought to have properly achieved completion. In effect the contractor is entitled to an extension of time to the completion date for employer-caused delays notwithstanding any concurrent contractor-caused [culpable] delay. The completion date is to be the total number of working days in which the contractor ought fairly and reasonably to have completed the works allowing for the employer-event starting from the date of possession/commencement. The practical effect if this is shown by example: if the work was to be completed in week 52 and a variation is issued in week 59, the extension of time for the variation is to start from week 52, not week 59.
Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Ltd (1999) TCC
The proposition (as stated in the Balfour Beatty case) that the contractor is entitled to an extension of time to the completion date for employer-caused delays notwithstanding any concurrent contractor-caused [culpable] delay was already agreed by the parties prior to the commencement of proceedings. Notwithstanding this pre-agreed position of the parties, the court said that the architect was entitled to consider the effect on the completion date of any contractor-caused [culpable] delays. This is arguably a contradiction of the pre-agreed position of the parties. This case should therefore be treated with some caution in the context of concurrent delay due to the effect on the decision of the pre-agreement of the parties and the arguably circular argument relating to the exercise of the architects opinion.
The Judge in this case qualified his decision to the effect that the contractor was only entitled to an extension of time for causes of delay that were the employer’s responsibility and which delayed the project as a whole (i.e. due to the delayed activities being on the project’s critical path).
Ascon Contracting Limited v Alfred McAlpine Construction Isle of Man Limited (1999) TCC
Ascon, the sub-contractor making the claim, argued that its explanation with regard to the cause of the delay should prevail since the main contractor, McAlpine, had not established any other cause of delay. However, the court considered that this argument reversed the burden of proof (i.e. Ascon saying McAlpine had to show what had caused delay) and hence Ascon’s argument was rejected. The burden of proof remains with the contractor to establish that the employer was responsible for the claimed delay.
The Royal Brompton Hospital NHS Trust v Frederick Alexander Hammond and other (2000) TCC
The Judge in this case noted that in order to assess if a particular causative event affected the ultimate completion of the work, rather than just a particular operation, it is necessary to consider what operations, at the time when the causative event happens, are critical to the forward progress of the work as a whole. This will require the use of critical path analysis techniques and will equally apply to the effect (i.e. the delay) of the causative event. The judge considered two examples:
Example 1-Where there is an ongoing contractor-caused delay [effect] and an employer-caused delay occurs and the employer-caused delay has no effect on the completion date, then no extension of time to the completion date is due to the contractor.
Example 2-If two causative events occur, one employer-caused and the other contractor-caused [culpable event], the contractor is entitled to an extension of time to the completion date for the period of delay [the effect of the causative event] caused by the employer event, even if the other culpable event has a concurrent effect.
Applying the same principle, consider the situation where there is an ongoing contractor-caused delay [effect] and an employer-caused delay occurs and the employer-caused delay has the effect of extending the completion date beyond that which would have been the completion date had only the first contractor-caused delay occurred. In such circumstances, an extension of time to the completion date is due to the contractor for the net increased effect of the employer-caused delay over the contractor-caused delay.
Motherwell Bridge Construction Ltd v Micafil Vakuumtechnik (2000) TCC
A slight departure from the Henry Boot case arose when the Judge stated that in assessing extensions of time involving issues of concurrency, it is necessary to apply a test of common sense and fairness. The Judge considered that a full extension of time should be awarded where there is concurrent contractor-caused and employer-caused delay, if it is fair and reasonable to do so.
SCL Protocol [Which does not have any legal standing]
The UK’s SCL Protocol concerns the recommended approach for assessing extensions of time during the currency of a project – unlike all the above court judgments which consider extensions of time long after the project has finished! Guidance Note 1.4.1 states “Where Contractor Delay to Completion occurs concurrently with Employer Delay to Completion, the Contractor’s concurrent delay should not reduce any EOT [extension of time] due.” A similar statement is made where the effect of sequentially occurring employer-caused and contractor-caused delays to completion occur (GN 1.4.7). The SCL Protocol generally follows the approach outlined in the above cases with the
exception of the Motherwell Bridge case and with the aforementioned proviso that the differences reflect the principle of prevention underlying the SCL Protocol approach. However, the SCL Protocol’s guidance is, as stated in GN 1.4.3, “a compromise, taking account of the different competing arguments, but represents what the Protocol considers to be the most appropriate solution.”
Notwithstanding the introduction of the SCL Protocol, at the present time within the construction industry (and arguably the courts) there is a lack of consistency in the definition of “concurrent” delay. The result is an even greater inconsistency in the approach to delay analysis and the manner in which concurrency is treated.
Mervyn Raybould is an Associate Director and is based at Trett Consulting’s Coventry office