Concurrent delay in Construction Contracts

Hello and welcome to this week's Blog; it could be said that within the context of the Covid-19 pandemic, Brexit and the war in Ukraine causing a shortage of materials, the construction industry should brace itself for a turbulent few years with claims for delay and disruption. Therefore, this week's Blog will focus on Concurrent delays within a project.

What is a concurrent delay?

The currently accepted definition of concurrent delay in English law by John Marrin KC for the Society of Construction Law (SCL) in 2002 requires "two or more effective causes of delay which are of approximately equal causative potency". In simple terms, a project is delayed completion by two or more events, with one being the employer's responsibility and one being the contractor's.

The England and Wales Position

Often referred to as a Malmaison position, from the case of Henry Boot Construction V Malmaison, where Justice Dyson ruled that a contractor was entitled to an extension of time where a relevant event had caused a period of delay, despite a concurrent effect by another event. The judge clarified this position with the imaginary situation where a weather event delayed work for one week, which was the employer's liability. However, in the same week, the contractor had no labour, so the delay would have occurred even if the weather event did not happen. In this case, the contractor would be entitled to an extended time.

The Scottish Position

The Scottish position was the same as England and Wales until 2010, when the court of appeal ruled in the case of City Inn v Shepheard Construction ruled that it may be appropriate to apportion the delay between the concurrent events. The court of appeal clarified the situation by describing two cases as operative causes of uncertainty, one being the employer's responsibility and one the contractor, neither causes being the dominant issue; the decision made as permitted by the contract may apportion the delay between each party fairly and reasonably. This method has also been adopted internationally in Hong Kong and Singapore.

Suppose you are in difficulties with a project, and the subject of concurrent delay has arisen. In that case, there is a possibility of a dispute crystallising and the real possibility of an adjudication commencing. The earlier you engage an expert on construction law, the higher the likelihood of a positive outcome. At Velocity Dispute Management, we can support analysing concurrent delays to suggest a fair and reasonable position depending on the law of the contract. We can also sit next to you or lead discussions with the other party to resolve the issue before a dispute arises. If you wish to discuss how Velocity Dispute Management can support you or discuss this Blog's content, please get in touch with admin@velocitydisputemanagemet.co.uk or book a strategic review meeting where one of our consultants will review your situation and create an action plan to utilise your rights in law to resolve the problem.

The content of this blog is intended for information only and is not an alternative for legal advice. Velocity Dispute Management accepts no responsibility for the actions of another party as a result of this blog or the content of any third party source which this blog refers.