Concurrency of delay is an often alleged and much contested element of delay and disruption claims. The differing approaches to concurrency and diverse case law in different jurisdictions often add to the complexity of this much debated subject. This brief review of current case law in the UK will look to establish some clarity for the parties when considering such claims.

TIME

The UK’s Society of Construction Law Delay and Disruption Protocol (SCL Protocol) suggests that where true concurrent delays occur “…the contractor should nevertheless be entitled to an EOT for the employer delay to completion…” This approach is influenced by the ‘prevention principle’ in law, which prohibits the promisee insisting on the performance of an obligation which it has prevented the promisor from performing.

It, therefore, follows that in Percy Bilton v. Greater London Council, the Court found “….the employer is not entitled to liquidated damages if by his acts or omissions he has prevented the main contractor from completing his work by the completion date ....” That is unless otherwise agreed “…by the express terms of the contract.”

The Court of Appeal in Peak Construction v McKinney Foundations stated with respect to the liquidated damages clause “If the failure to complete on time is due to the fault of both the employer and contractor, in my view the clause does not bite.” It is, therefore, implied that the Contractor is entitled to an extension of time although jointly responsible for the delay to completion. Similarly, in Balfour Beatty v. Chestermount Properties, the Court found that the Contract Ad-ministrator did have jurisdiction under clause 25 to grant an extension of time in respect of an Employer delay occurring during a period of Contractor delay.

Then, in Henry Boot v. Malmaison, the Court stated:
“…it is agreed that if there are two concurrent causes of delay, one of which is a relevant event, and the other is not, then the contractor is entitled to an extension of time for the period of delay caused by the  relevant event notwithstanding the concurrent effect of the other event.”

However, the judgement in this case is a record of what had already been agreed between the parties, rather than an opinion of the Judge. In
addition, the concurrency example detailed within this case is one of true
or real concurrency whereby the delays commence at the same time. The Royal Brompton v. Hammond (No 7) case supported the Malmaison approach where “…there is a real concurrency of causes of delay.”
However, the Court considered that “events operating concurrently” did not mean the occurrence of an Employer delay, which would have caused completion to be delayed, had it not been for an existing Contractor delay. In such circumstances “The relevant event simply has no effect upon the completion date.”

The Court in City Inn v. Shepherd considered the findings of Royal Brompton and stated:
“It should not matter whether the shortage of labour developed, for example, two days before or two days after the start of a substantial period of inclement weather; in either case the two matters operate concurrently to delay completion of the works. ….and they should be dealt with in the way indicated in clause 25.3.1 by granting such an extension as the architect considers fair and reasonable”.

However, with respect to clause 25, the Court also found that where both Employer and Contractor delays exist simultaneously “…it may be appropriate to apportion responsibility for the delay between the two causes…” on the basis that the apportionment is fair and reasonable.

MONEY

The SCL Protocol considers that where Employer and Contractor delays have concurrent effect, to recover delay (or time-related prolongation) costs the Contractor has to “separately identify the additional costs caused by the employer delay from those caused by the contractor delay.”

The 25th edition of Chitty on Contracts identifies that “The courts have avoided laying down any formal tests for causation: they have relied on common sense to guide decisions as to whether a breach of contract is a sufficiently substantial cause of the Plaintiffs loss. (It need not be the sole cause).”

However, in Leyland Shipping v. Norwich Union, the dominant cause to concurrency is adopted and defined as “If there are two causes, one the contractual responsibility of the claimant, the claimant succeeds if he establishes that the cause for which the defendant is responsible is the effective dominant cause…”. The Court also established which cause is more dominant is a question of fact, which is not resolved by the mere point of order of time.In Heskell v. Continental Express, the ‘Devlin’ approach to concurrency is defined as “…if a breach of contract is one of two causes of a loss, both causes cooperating and both of approximately equal efficacy… it is sufficient to carry judgement for damages.” However, the court of appeal in Galoo v. Graham Bright Murray found that “if a breach of contract by a Defendant is to be held to entitle the Plaintiff to claim damages, it must first be held to have been an ‘effective’ or ‘dominant’ cause of his loss”.

Although the dominant approach to concurrency is also supported by the
Courts in Doyle v. Laing Management and in Mirant v. Arup, it is not considered applicable to claims for extension of time. In Fairweather v. London Borough of Wandsworth, the Court found with respect to the Contractor’s extension of time “I do not consider that the dominant test is correct.”

In City Inn, the Court apportioned the responsibility for the delay to completion between the Employer and Contractor delays and found that in this case “…the claim for prolongation costs should follow the result of the claim for extension of time.”

CONCLUSION

In summary, the prevention principle or Malmaison approach to concurrency of delay is considered appropriate by the writer when considering claims for extension of time; as opposed to the dominant cause approach.

However, the principles of causation and the dominant cause approach are considered by the writer to be appropriate when considering financial claims for prolongation costs. Whether the apportionment approach will be subsequently adopted by courts remains to be seen.

Chester Hoy is based at Trett Consulting’s Leeds office. He can be contacted at chester.hoy@trett.com