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Concurrent Delay

The law applicable to this issue has been described in Keating on Building Contracts (Furst and
Ramsey 2006) as unclear and consisting of disjointed propositions. Wilmot-Smith (2006) expresses
surprise at the absence of clear authority on such a common cause of disputes in the construction
industry. However, there are approaches commonly adopted to deal with concurrent delays. The main
ones include:

the first-in-line approach,

the but for approach,

the dominant cause approach,

the apportionment approach,

the Malmaison approach.

First-in-line
This

approach

assumes

that

the

first

event

is

the

cause

of

the

whole

delay.

On the one hand, this means that if the event is a ground for extension of time the contractor gets the
extension even if his subsequent actions compounded the delays. On the other hand, if his own delay
was compounded by causes for which the Employer was responsible, the contractor is not entitled to
extension of time. There is some support for this approach in Royal Brompton Hospital NHS Trust v.
Hammond (No.6) (2000) 76 Con LR 131 in which HHJ Seymour said at paragraph 31: QC
it is, I think, necessary to be clear what one means by events operating concurrently. It does not
mean, in my judgment, a situation in which, work already being delayed, let it be supposed, because
the contractor has had difficulty in obtaining sufficient labour, an event occurs which is a Relevant
Event and which, had the contractor not been delayed, would have caused delay, but which in fact, by
reason of the existing delay, made no difference. In such a situation although there is a Relevant
Event, the completion of the works is not likely to be delayed thereby beyond the Completion Date.
But-for approach
The but-for test is the common contractors response to the application of the first-in-line argument
against its culpable delay. According to this test the delay is the responsibility of the contractor if it
would not have occurred but for the occurrence of the event for which the contractor is responsible.
This test exculpates the contractor whenever events for which the contractor is not responsible
compound delay already caused by the contractor. The fact no case was found with any support for
this approach suggests that it is unlikely to be a winning strategy.
The dominant approach
The dominant approach attributes the entire delay to the dominant event. There is support for this
approach in Keating on Building Contracts (Furst and Ramsey 2006) on the general issue of causation.
However, Marrin (2002) doubts its applicability to the determination of contractors entitlement to
extension
time.
There
are
two
problems
associated
with
it.

First, it breaks down if the events are of equal causative potency. Second, the implications for
recovery of direct loss and/or expense could be unfair to one of the parties. For example, where the
dominant cause of delay is also a ground for recovery of loss and expense then the contractor would
be entitled to recovery in respect of the whole delay though some of the contributory causes of the
delay may not be grounds for recovery. For these reasons, the use of this approach was disapproved
of in H. Fairweather & Co. Ltd v. London Borough of Wandsworth (1988) 39 BLR 106.
The apportionment approach
The apportionment method attempts to distribute the total delay to the various contributing causes.
Marrin (2002) questions its legal basis in the absence of express terms to adopt it. It would appear
that e.g. under the JCT2005, where one of the delaying events is not a Relevant Event; the E/PM must
follow this approach. Clauses 2.27.2 and 2.28.1 support this view. Under Clause 2.27.2, the
Contractor is expected to provide the E/PM with estimates of the delay caused by each Relevant Event.
As Clause 2.28.1 requires the Architect to give an extension of time which is fair and reasonable, the
Architect must make allowances for the Contractors contribution to the delay.
The Malmaison approach
The so-called Malmaison approach stems from the judgment of Dyson J (as he then was) in Henry
Boot Construction (UK) Ltd. v. Malmaison Hotel (Manchester) Ltd. (1999) 70 Con LR 32. In that case
the Judge recorded at paragraph 13, without questioning, agreement between the parties including:
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. Thus, to take a simple
example, if no work is possible on 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 works beyond the completion date by
one week, then if he considers it fair and reasonable to do so, the E/PM 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.
Conclusions
Delay continues to be a major challenge on construction projects. Disputes as to party responsibility
for the financial consequences appear to be on the increase. Whilst the causes of delay have been
researched extensively, relatively little research effort has been exerted into identifying the issues
normally in dispute for remedial action. The paper identifies some of these issues. They include the
type and content of contractors programmes, the performance of the time management function of
contract administrators, and concurrent delays. A preliminary conclusion is that the standard forms of
contract are still to be developed further in the light of the problems identified and guidance from the
courts thereon.
References

Abrahamson, M., 1979, Engineering Law and the ICE Contracts, 4th Ed., London: Applied
Science Publishers Ltd.

Baker, E., Bremen, J. and Lavers, A., 2005, The Development of the Prevention Principle in
English and Australian Jurisdictions, International Construction Law Review, 22(2), 197-211.

Bell, M., 2006, Scaling the peak: the prevention principle in Australian construction contracting, International Construction Law Review, 23(3), 318-354.

Fletcher, A., 1998, Key Issues in Time Extension Claims, Building and Construction Law, 4,
193-208.

Furst, S. and Ramsey, V. (Editors), 2006, Keating on Construction Contracts, 8th Ed., (London:
Sweet & Maxwell), at paragraph 8.018.

Holborn, G. (2001). Butterworths Legal Research Guide. 2nd Ed. (London: Butterworths).

Lal, H., 2002. Extension of Time: the Conflict Between the Prevention Principle and Notice
Requirements as conditions Precedent. (Wantage, Oxfordshire: Society of Construction Law)

Lane, N., 2000, Constructive Acceleration, Construction Law Journal, 16(4), 231-241.

Marrin, J., 2002, Concurrent Delay. Construction Law Journal, 18(6), 436-448.

Pickavance, K., 2005, Delay and Disruption in Construction Contracts. 3rd Ed., (London: LLP)

Pickavance, K., 2006, Calculation of a reasonable time to complete when time is at large,
International Construction Law Review, 23(2), 167-186.

Smith, G., 2002. The prevention principle and conditions precedent: recent Australian
developments, International Construction Law Review, 19(3), 397-404.

Suryawanshi. C.S(Dr) (2006) CONSTRUCTION CLAIMS THEIR BASIS/ GROUNDS Indian


Highways Published by Indian Roads Congress

Wallace, I.D. (1995). Hudsons Building and Engineering Contract, 11th Ed., (London: Sweet &
Maxwell).

Wilmot-Smith, R., 2006, Construction Contracts: Law and Practice, (Oxford: Oxford University
Press).

As far as I know FIDIC does not mention concurrent delay specifically.


The other problem is that different delay analysis methods give different results on concurrency.
For instance it is almost impossible to generate true concurrency using the windows method.
Currently the generally accepted rules are these:
1. True concurrency - where two delay events each start on the same day and each affect the same
critical path.
Example: The employer cannot grant access to start the works and the contractor's selected piling
sub-contractor has gone bust.
Now it all depends who solves their problem first - If the contractor has a new piling sub contractor
ready to start but the employer still cannot grant access then the total delay is borne by the
employer and no LAD's can be applied but the contractor can only claim costs for the time between
when he was ready to start and the employer granted access.

Things start to get more complex if different delay events start on different days and / or affect the
critical path differently.
2. Mixed concurrency - over riding employers delay
If the employers delay started first and caused the whole of the delay but the contractors event
would have caused delay but for the overiding delay then the contractor gets relief from LAD's
( Liquidated and Ascertained Damages) but does not get costs for his delay period.
3. Mixed concurrency - over riding contractors delay
If the contractors delay starts first and caused the whole of the delay - and the employers delay does
not cause any further delay then the LAD's are applied and no costs awared.
If the contractors delay starts first and caused part of the delay - but the employers delay does
cause some further delay then the period of further delay is added to the original completion date
and an EoT is awarded for the resulting end date. LAD's are deducted for the remaining delay period.
It is not clear if the contractor gets costs for the extended period.
It gets really complex when there are multiple delay events all overlapping.

SCL Delay and Disruption Protocol


The SCL Delay Protocol appears to mirror the English law (Malmaison) position where it talks about
concurrency because at Core Principle No.9 it provides that if there is both a contractor and employer
caused delay then the contractors entitlement to an extension of time should not be reduced. The SCL
Delay Protocol explains the basis of its position in this respect at Sections 1.4.5 and 1.4.7.
UAE laws dealing with late completion and delay damages
Whilst the above may demonstrate what concurrent delay is and how it is applied in the English courts at
least, how is it dealt with under UAE law?

It will be appreciated by those familiar with construction law in the UAE that principles and concepts which
are fairly well developed in other legal jurisdictions may not be so easily found within the laws of the UAE.
[22] Experience suggests that it is not uncommon for some foreign lawyers who are new to the region try
and shoehorn their own legal principles into the provisions of UAE law in an attempt to deal with some of
the legal issues they encounter here in the UAE.
Concepts such as concurrent delay, extension of time, prevention principle and time at large are not
expressly provided for within UAE law.[23] However, the fact that they do not exist as such should not
cause too much concern because there are provisions to be found which may provide for a similar result.
It is trite, according to English law anyway, that a time delay does not necessarily give rise to financial
recompense. What this means is that whilst a contractor may be entitled to an extension of time under a
contract, this does not necessarily mean it will receive compensation for that delay, i.e. it must prove a
causal link between the delay and its loss. To distinguish between time and money, experts and lawyers
often refer to excusable and compensable delays. However, it is suggested that when considering these
issues under UAE law, one should look at both the bigger picture and the end result to see how
concurrent delay can be dealt with under UAE law.
Whilst UAE law does not allow for a contract to be extended without agreement, [24] Articles 247, 249,
414 and 472 of the UAE Civil Code may, in some (possibly exceptional) cases, be relied upon to give a
contractor a release from strict performance in terms of time.
Where a completion date cannot be extended (either pursuant to the contract or law), a contractor is, by
default (under FIDIC), liable for liquidated damages. However, Article 878 of the UAE Civil Code may
assist a contractor because it provides that a contractor will only be liable for any loss or damage insofar
as the loss does not arise from an event which the contractor could not prevent (e.g. an employer caused
delay).[25] Similarly, Article 290 of the UAE Civil Code provides that a judge (or tribunal) may take into
account the level of involvement of the other party (i.e. the employer) when assessing compensation.[26]
One possible interpretation of Article 291 of the UAE Civil Code is that it may allow a judge (or arbitrator)
to apportion liability for concurrent delay. Of course, conversely, an employer can rely upon these same
provisions insofar as a contractor may be claiming an extension of time or prolongation costs during a
period of concurrent delay.
One of the provisions of UAE law which is most often cited in construction disputes is the duty of good
faith, which can be found at Article 246(1) of the UAE Civil Code. This provision is often relied upon by
contractors when making allegations of unlawful acts (or inaction) by engineers or employers. In addition
to this provision of good faith, Article 106 of the UAE Civil Code prohibits the unlawful exercise of a right.
Hence, if an employer causes delay and the engineer subsequently fails to grant an extension of time for
the same (or the contract does not allow an extension of time to be granted) then an employers
subsequent attempt to levy liquidated damages for the contractors late completion could possibly fall foul
of the Articles 106 and 246(1). Alternatively, a contractor may argue that in circumstances where the
employer caused delay the employer would be unjustly enriched if it were to recover liquidated damages
for this period. Again, these are all provisions which could also be relied upon by the employer if the
contractors concurrent delay can be proven.
Notwithstanding the above, if a contractor believes that it has not been properly granted an extension of
time (or if the contract does not allow for an extension) it may, amongst other things, seek to challenge an
employers deduction of liquidated damages by way of Article 390(2) of the UAE Civil Code. The decision
whether to adjust the amount of liquidated damages will be at the discretion of the judge (or tribunal). At

first glance, Article 390(2) may seem like a contractors trump card insofar as it may make life difficult for
an employer because the employer would then have to prove its actual loss. However, contractors would
do well to remember that the UAE Courts have consistently held that it is the contractor who has the
burden of proving that the pre-agreed liquidated damages do not represent the employers actual loss.
[27] Of course, an employer may also apply to lift the capping of liability if it believes (and can prove) its
actual losses are far greater than the pre-agreed liquidated damages.
When exercising its discretion under Article 390(2) a court (or tribunal) will likely consider the UAEs
hierarchy of laws and the underlying theme of freedom to contract and pacta sunt servanda (agreements
must be kept).[28] [29] It is widely recognized that clear words cannot be easily departed from.
[30] Therefore, it may not be as easy as first thought for a party to simply turn round when later in dispute
and cry foul because it no longer likes the consequence of what it had previously agreed as acceptable
as liquidated damages.
Dealing with Concurrency in the UAE
In light of the above, what principles can be drawn when faced with arguments of concurrent delay in a
construction dispute in the UAE?
As with any construction claim, careful consideration should first be had to the terms of the contract.
Pursuant to Sub-Clause 43.1 of FIDIC 4 th Ed.,[31] one of the contractors primary obligations is to
complete on time[32]and this obligation is reinforced by Articles 243, 246(1), 874 and 877 of the UAE Civil
Code.[33] Particular regard should be had to how the parties have agreed to apportion risk for delay
under the terms of the contract, e.g. Sub-Clause 44.1 of FIDIC 4th Ed.[34]
Because of the serious financial consequences arising from the late completion of a construction project,
a contractor will often seek to excuse its delayed completion by laying some (if not all) of the fault at the
door of the employer (or engineer). Conversely, an employer will likely argue that there was concurrent
delay on the part of the contractor. Specifically in terms of concurrency:
1. A contractor will likely argue that if the employer has caused a critical delay then the contractor is
entitled to an extension of time, even if the contractor was in culpable (i.e. concurrent) delay itself.
[35] [36]
2. An employer will likely argue that by reason of the contractors culpable delay the contractor
would have been late anyway; hence, there is no entitlement to an extension of time.[37]
To determine whether there has been a concurrent delay when faced with a contractors claim for an
extension of time it is suggested that one approach would be for the engineer to first carry out a
comprehensive review of the facts against the relevant and most recently updated programme (i.e. the
programme which shows the latest critical path prior to the events occurring) to determine whether an
employer and/or contractor risk event actually caused a critical delay to the overall completion date.[38]
As part of such a review it would be imperative for the engineer to have regard to the apportionment of
risk for delay events under the contract. A perusal of most standard form contracts used in the UAE
discerns that if a relevant event occursand causes (or, is likely to cause) delay to completion then a
contractor should be awarded an extension of time.
In the context of concurrent delay, this raises the question: can an extension of time clause be interpreted
in such a way that the intention of the parties was that if an employer risk event caused (or is likely to
cause) a critical delay when a contractor was in concurrent delay then the contractor is not entitled to an

extension of time? A possible answer to this question is that, based on an interpretation of the FIDIC
forms of contract at least, it appears that if there is concurrency then, provided the contract allows for the
award of an extension of time, the contractor should still get an extension of time and the financial
consequences would flow as laid down in the UAE laws referred to above.
Summary
Leaving aside possible time bar and condition precedent issues, when faced with a claim from a
contractor for an extension of time based upon an employer risk event an engineer should firstly
determine whether the alleged event occurred in the manner described by the contractor and, secondly,
determine whether the event actually caused a critical delay or not.[39] If it did, then the next stage is to
consider by how much. Ordinarily, if there was no concurrent delay the engineer would then likely grant
an appropriate extension of time. However, if upon reviewing the facts the engineer determines that a
concurrent delay did occur the engineer will (as best he can) need to review the as-built information for
the period when the concurrent delay event occurred and determine whether this concurrent delay event
also affected the completion date and will, no doubt, make a decision as to the extension of time
entitlement based on one of the approaches referred to above.
Whilst the award of an extension of time will negate a contractors liability for liquidated damages, if the
contractor was in concurrent delay then UAE law will likely protect an employer from a contractors claims
for prolongation costs.
The views expressed in this article are the authors own and should in no way be taken as those of the
firm.