CONTINUING PROFESSIONAL DEVELOPMENT
Maximum Period 3 Hours
CONCURRENT DELAYS
A Comprehensive Review
By
Roger Knowles
CONTENTS
What is the problem
Sources of knowledge
Causes of delay
Basic legal principles
1. Prevention principle
2. Burdon of proof
3. A party cannot benefit from it’s own errors
Theories derived from text books and legal cases
1.
2.
3.
4.
5.
6.
7.
Devlin approach
Decision in Malmaison
First past the post
The dominant cause
Apportionment
But for test
Society of Construction Law Delay and Disruption Protocol
Summary
Standard Questions
Model Answers
CONCURRENT DELAYS
What is the Problem?
Delays to the progress and completion of the works come in all shapes and sizes. The
delays can be attributed to many reasons with their affect on progress and completion
sometimes obvious or as is often the case somewhat obscure. Are they on the critical
path and how is progress and completion affected? This begs the question as to which
critical path is involved, the one included in the original programme; when the event
occurred or at the time of practical completion? Was there more than one cause of
delay and what was the effect of each one on progress and completion? It is unlikely
that the delays all began and ended at the same time. There is usually some element of
overlap at the beginning and end of the delaying events. How is this to be
accommodated?
How does the contract deal with delays? Which events entitle the contractor to an
extension of time only or provide an entitlement to both time and reimbursement of
associated financial losses?
It can easily be seen that administering a contract in relation to delays is not a straight
forward matter.
Delays can be excusable delays which may be either due to fault by the employer or
his agent such as late access or delay in issuing drawings or delays due to a neutral
event such as excessively adverse weather or force majeure. Inexcusable delays are
those which are due to fault on the part of the contractor or his agents.
Sources of Knowledge
There are several sources of information which provide advice as to how contractually
the problems relating to concurrent delays should be resolved. The three main sources
are:



Legal principles explained in text books
Caselaw
The Society of Construction Law Delay and Disruption Protocol
Causes of Delay
It can be seen from the following that there are several situations which may occur
and require unravelling.
Delays which are concurrent may result from one of the following sets of causes:
1. Both contractor and employer caused the delay where the employer delay
would normally entitle the contractor to more time and money.
2. The contractor’s delay and a neutral event where the neutral event would
normally entitle the contractor to more time but no additional cost
3. Employer’s delay and a neutral event
4. A neutral event and one which entitles the contractor to both time and
financial compensation
5. Employer’s delay and one which entitles the contractor to both time and
financial compensation
7. Contractor’s delay and one which entitles him to both time and financial
compensation.
Basic Legal Principles
In attempting to unravel the problem of concurrent delay it is necessary to examine
some legal principles which may be applicable which include
1. The Prevention principle
This was established over one hundred years ago as explained in the decisions in
Roberts v The Bury Improvement Commissioners (1870) and Wells v Army and
Navy Co-operative Society (1903). In the later of these two cases it was said:
“In the contract one finds the time limited within which the builder is to do his
work. This means, not only that he is to do it within that time but it means also that
he is to have that time within which to do it.”
Keith Pickavance in his book Delay and Disruption in Construction Contracts at p 352
states:
“Lastly , and this is a legal conceptual problem the rules which apply to recovery of
actual damages for delay are not the same rules that apply to the relief of liquidated
damages for delay . If Cs progress on the critical path has been interfered with by
Ds act of prevention then C must be given sufficient time to accommodate the effect
of that and be relieved for liquidated damages for a commensurate period”
In other words the employer must not prevent the contractor from completing on time
as if this occurs the contractor will be absolved from liability for late completion.
2. Burden of Proof
This requires the injured party to show that damage caused results from a breach of
contract by the other party. Where there is more than one cause of delay it may be
difficult to show that the cause of delay results from the breach. Keating On Building
Contracts 7th Edition as at p 246 with regard to the burden of proof approach states:
“ If part of the damage is shown to be due to a breach of contract by the plaintiff,
the claimant must show how much of the damage is caused otherwise than by his
breach of contract, failing which he can recover nominal damages only”
3. A Party Cannot Benefit From It’s Own Errors
In the case of Alghussein Establishment v Eaton College (1988) it was held
“It has been said that as a matter of construction unless the contract clearly
provides to the contrary it will be presumed that it was not the intention of the
parties that either should be entitled to rely on his own breach of duty to avoid
the contract or bring it to an end or to obtain a benefit under it.”
This approach can be relevant when each party is responsible for delay. For example
there may be overrun due to a delay by the contractor and late instructions which
occur in parallel. The court in the USA have adopted a simplistic approach in
allowing the contractor an extension of time but not recovery of additional cost.
Employers will therefore not be entitled to deduct liquidated and ascertained damages
but on the other hand will have no obligation offer financial reimbursement to the
contractor. In other words the loss will lie where it falls.
Keith Pickavance in his book Delay and Disruption in Construction Contracts at p 352
states:
“Lastly , and this is a legal conceptual problem the rules which apply to recovery of
actual damages for delay are not the same rules that apply to the relief of liquidated
damages for delay . If Cs progress on the critical path has been interfered with by
Ds act if of prevention then C must be given sufficient time to accommodate the
effect of that and be relieved for liquidated damages for a commensurate period”.
Theories Derived From Text Books and Legal Cases
1. Devlin Approach
Keating On Building Contracts 7th Edition at page 246 draws attention to the Devlin
Approach where it states:
“If a breach of contract is one of two causes of a loss both causes co-operating and
both of approximately equal efficacy the breach is sufficient to carry judgment for
the loss”
This would apply where for example there were two competing causes of delay which
entitled a contractor to an extension of time, one a neutral event such as excessively
adverse weather and the other being a breach such as late issue of instruction by the
architect. Applying this approach the contractor would be entitled to an extension of
time and also the recovery of additional cost.
2. Decision in Malmaison
The decision in the case of Henry Boot Construction (UK) v Malmaison Hotel
(Manchester) Ltd (1999) produced a theory similar to the Devlin theory but more
advantageous to the contractor. Judge Dyson in this case said:
“...it was 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 delays caused by the relevant event nothwithstanding the
concurrent effect of the other event. Thus to take a simple example if no work is
possible on a site for a week not only because of exceptionally inclement weather (a
relevant event), but also because the contractor has a shortage of labour (not a
relevant event) and if the failure to work during that week is likely to delay the work
beyond the completion date by one week, then if he considers it fair and reasonable
to do so, the architect is required to grant an extension of time of one week. He
cannot refuse to do so on the grounds that the delay would have occurred in any
event by reason of the shortage of labour”
This theory goes one step beyond that which gives a contractor an entitlement to
additional time where he is causing delay at the same time as a delay caused by the
employer. Adopting the Malmaison approach the contractor is entitled to more time
when he is causing delay if the parallel delay is a neutral event such as exceptionally
inclement weather.
This and the Devlin approach have reached their conclusions on the basis of who has
taken the risk of delay under the terms of the contract. If the employer has taken the
risk of delay by a neutral event such as excessively inclement weather and delay due
to the late issue of information then under a JCT type contract the architect will be
expected to use his or her discretion by granting an extension of time where delay is
caused by an employer risk event.
3. First Past the Post
This approach adopts the logic that where delays are running in parallel the cause of
delay which occurs first in terms of time will be used for adjusting the contract period.
Other causes of delay will be ignored unless they affect the completion date and
continue on after the first cause has ceased to have any delaying affect. In this case
only the latter part of the second delay will be relevant to the calculation of an
extension of time. For example delays may run in parallel due to the late issue of
drawings and excessively inclement weather. If the late issue of drawings causes a
delay commencing on 1 February and inclement weather makes work impossible
from 14th February the late issue of drawings is the first past the post and will take
precedence over inclement weather until the drawings are issued. If drawings are
issued on 21st February but the inclement weather continues until 28th February the
contract completion date will be adjusted in respect of weather for the latter period.
On the assumption that both delays are on the critical path an extension of time for 3
weeks due to late issue of drawing and 1 week for excessively inclement weather
should be awarded. The Australian Building Works Contract JCC-E 1994 published
by the Joint Contracts Committee under clause 10.11 Predominant Causes of Delay
applies the first past the post approach.The first past the post would seem an
appropriate method of resolving the issue of concurrent delays in the UK provided
there were no delays caused by the employer. It seems that where one of the
concurrent delays can be attributed to the employer the courts are determined to
ensure the contractor does not incur liquidated and ascertained damages.
4. The Dominant Cause
4.1 Where the dominant cause applies it will be a matter of choosing the
dominant or predominant delay where more than one delay is responsible for late
completion. Keating On Building Contracts 7th Edition at p 246 defines dominant
cause in the following terms:
“If there are two causes, one the contractual responsibility of the Defendant and
the other the contractual responsibility of the Plaintiff the Plaintiff succeeds if he
establishes that the cause for which the Defendant is responsible is the effective
dominant cause. Which cause is dominant is a question of fact, which is not solved
by the mere point of order in time but is to be decided by applying common sense
standards”
4.2 Keating On Building Contracts 6th Edition at p.212 states:
“The burden of proof should require the plaintiff to establish that the loss resulted
from the cause on which he relies and that he will do so if he establishes that it was
the dominant cause. He should not be required additionally to disprove lesser
alternative causes altogether”
4.3 The court approved of the dominant cause in the case of John Doyle Ltd v
Laing Management (Scotland) Ltd (2004) when it was said:
“The question of causation must be treated by the application of common sense to
the logical principles of causation…..In this context it is frequently possible to say
that an item of loss has been caused by a particular event notwithstanding that
other events for which the employer is responsible can be described as the dominant
cause of an item of loss, that will be sufficient to establish liability notwithstanding
the existence of other causes that are to some degree at least concurrent”
4.4 The question of a dominant cause was considered in the Scottish case of
Musselburugh and Fisherrow Cooperative Society v Mowlem (Scotland) Ltd
(2005) in which the court seemed to like the dominant cause approach but it could
not be applied as there was no conclusive evidence as to whether any of the three
competing causes of loss was the dominant one.
4.5 In contrast to the aforementioned cases the court in the case of H Fairweather and
Co Ltd v London Borough of Wandsworth (1987) were not impressed with the
dominant cause. This case resulted from a contract to construct 478 dwellings
employing a JCT 63 contract. Work was delayed by strikes, late instructions on
the part of the Architect and variations. The Architect granted 81 weeks extension
in respect of strikes. It was argued before the arbitrator by the contractor that 18 of
those weeks should have been allocated to late instructions and variations. The
arbitrator disagreed and accepted the Architects decision on the basis that the
delay caused by the strikes was the dominant one. On appeal the court overruled
the decision of the arbitrator in rejecting the dominant cause approach where it
was said:
“Dominant has a number of meanings: Ruling, prevailing, most influential.
On the assumption that condition 23 is not solely concerned with liquidated or
ascertained damages but also triggers and conditions a right for a contractor to
recover direct loss and expense where applicable under condition 24 then an
architect and in his turn an arbitrator has the task of allocating where the facts
require it the extension of time to the various heads. I do not consider that the
dominant test is correct”.
This leaves the situation of dominant cause somewhat open. It would seem however
that the rejection in the Wandsworth case did not seem to have influenced the
more recent John Doyle and Musselburgh decisions.
5. Apportionment
5.1 Traditionally where breach of contract cases come before the courts it is
usual for any loss to be attributable to a single cause. The tendency being to
take the view that on a strict interpretation of the contract the intention of the
parties was for the winner to take all. Some variance on this approach was
evident in the case of Tennant Radiant Heat Ltd v Warrington Development
Corporation (1987) which involved the collapse of a warehouse roof due to
an accumulation of rainwater because of blocked outlets. The landlord had a
liability for damage and the tenant the responsibility for repair either of
which could have caused the collapse .It was decided by the court that the
losses which resulted from the collapse should be apportioned between the
landlord and tenant. Lord Justice Dillon explained the rationale as follows:
“The problem which this court faces on the claim and counterclaim alike is in my
judgement a problem of causation of damages. On the claim the question is how
far the damage to its goods which the lessee has suffered was caused by the
corporation’s negligence notwithstanding the lessee’s own breach of covenant.
On the counterclaim the question is how far the damage to the corporation’s
building which the corporation has suffered was caused by the lessee’s breach
of covenant notwithstanding the corporation’s own negligence. The effect is
that on each question apportionment is permissible”
5.2 Keating On Building Contracts 6th edition at p 213 provides support for
apportionment where it is stated:
“Where the loss or damage suffered by the plaintiff results partly from his own
conduct and partly from the defendant’s breach of contract it is correct in
principle for the damages to be apportioned”
5.3 Support for apportionment can also be found in the case of John Doyle
Ltd v Laing Management (Scotland) Ltd (2004) when it was stated:
“ …even if it cannot be said that events for which the employer is responsible are
the dominant cause of the loss it may be possible to apportion the loss between
the cause for which the employer is responsible and other causes. In such a case
it is obviously necessary that the event or events for which the employer is
responsible should be a material cause of the loss. Provided that condition is
met however we are of the opinion that apportionment of loss between the
different causes is possible in an appropriate case. Such a procedure may be
appropriate in the case where the causes of the loss are truly concurrent in the
sense that both operate together at the same time to produce a single
consequence”.
This suggests that for apportionment to apply both causes of loss must begin and end
at the same time which would be unusual.
5.4 The case of Musselburgh and Fisherrow Cooperative Society Ltd v
Mowlem (Scotland) Ltd (2005) is a case which involved three significant defects in a
swimming pool, two of which were statute barred. One of the expert witnesses
considered that apportionment would be the most appropriate method of arriving at a
just settlement and suggested a straight three-way split. The court warmed to the idea
of apportionment but considered this suggestion a little too rough and ready. In
arriving at a figure to be awarded the court considered that some of the remedial
works amounted to betterment in respect of which an appropriate reduction was made.
The court apportioned the cost of replacing gratings and channels and also the
waterproofing. A sum was also added for loss of revenue due to the closure, interest
and costs which totalled £104,274. Where does this leave us with regard to causes of
action whether relating to defects or delays which run in parallel? The court approved
of both the dominant cause and apportionment approach but offered no lasting
suggestions on matters of principle.
6. But For Test
A but for test has been developed and if successful could be useful to contractors. The
argument often runs that but for the architect’s instructions a delay would not have
occurred. In the Australian case of Quinn v Burch Brooks (Builders) Ltd (1966)
auditors failed to identify that a company was in a substantial loss position. It was
argued that but for the auditor’s errors the loss making company would have ceased
trading and subsequent trading losses would therefore have been avoided. In the UK
case of Turner Page Music Ltd v Torres Design Associates Ltd (1997) an action was
brought against an architect for negligence when there was a severe financial overrun
on a construction project. The employer subsequently sold the building and alleged
that but for the architect’s negligence the sale would not have been necessary.
The courts in both cases rejected the but for argument.
Society of Construction Law Delay and Disruption Protocol
The Protocol does not produce anything new but lends support to some of the
methods already described above. It commences with an interpretation given in clause
1.4.4 of what is meant by concurrent delays. True concurrency is explained as
occurring when two or more delays begin and end at the same time but considered as
being a rare occurrence. Where this occurs the Protocol considers that the contractor
will be entitled to an extension of time if one of the delaying events is an employer
delay. This would apply even if one of the other delaying events was a contractor
delay. This is in line with a party not being entitled to benefit from its own errors.
The Protocol states that the term concurrent delay is often used to describe the
situation where two or more delay events arise at different times but the effects of
them are felt either in whole or in part at the same time. To avoid confusion the
Protocol explains this situation is more correctly termed the concurrent effect of
sequential delay events. Delays by the employer are not dealt with in any different
manner where the delays have concurrent effect, the contractor will be entitled to an
extension of time.
If and employer delay is truly concurrent with another cause of delay or merely has a
concurrent effect it will be a matter of analysis to establish whether the contractor is
entitled to any financial compensation.
Summary
It can be readily seen that there are numerous different approaches to deciding how to
deal with delays which run concurrently. There seems to be only one consistent rule
which applies and that is in the event of a delay being caused by the employer no
deduction of liquidated damages is allowable irrespective of what other cause is
contributing to the overall delay.
In the final analysis the outcome will no doubt depend upon the circumstances and the
wording in the contract.
Standard Questions
1. Which of the following causes of delay usually entitle the contractor to more
time and financial reimbursement
(A) Employer’s delays
(B) Delays caused by neutral events
(C) Delays caused by subcontractors
2. Which of the following are recognised as sources of knowledge relating to
concurrent delays
(A) Standard forms of contract
(B) Legal principle explained in text books
(C) Case law
3. Which of the following if causing delay can be attributable to the prevention
principle
(A) Interference by the employer
(B) Restricted access to the site caused by the Highway Authority
4. Which of the following legal cases support the dominant cause approach
(A) Fairweather v London Borough of Wandsworth (1987)
(B) John Doyle Ltd v Laing Management (2004)
(C) Musselborough and Fisherrow Cooperative Society Ltd v Mowlem
(Scotland) Ltd (2005)
5. Which of the following approaches to concurrent delays are unlikely to be
adopted by the UK courts
(A) But For Theory
(B) Apportionment
(C) First Part the Post
6. In which of the following legal cases was it held that where concurrent delays
occur due to a neutral event such as excessively inclement weather for which
the contractor is entitled to an extension of time together with a contractors
own delay an extension of time should be granted
(A) Henry Boot (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999)
(B) Quinn v Burch Brooks Builders Ltd (1996)
(C) Turner Page Music Ltd v Torres Design Associates Ltd (1997)
7. Which of the following are described in the Society of Construction Law
Delay and Disruption Protocol as delay having concurrent effect in contrast to
concurrent delays
(A) Delays which have the same start and finish date
(B) Delays which arise at different times but whose effects are felt at the
same time.
Model Answers
1. (A)
2. (B) and (C)
3. (A)
4. (B) and (C)
5. (B) and (C)
6. (A)
7. (B)