INTERNATIONAL APPROACHES

TO THE LEGAL ANALYSIS OF

CONCURRENT DELAY: IS THERE
A SOLUTION FOR ENGLISH LAW?

A paper based on the first prize entry

in the Hudson Prize essay competition 2012,
presented to a meeting of the Society of
Construction Law in London on 9th April 2013

Matthew Cocklin

April 2013

182

www.scl.org.uk
 INTERNATIONAL APPROACHES
TO THE LEGAL ANALYSIS OF
CONCURRENT DELAY: IS THERE
A SOLUTION FOR ENGLISH LAW?

Matthew Cocklin

Introduction
Concurrent delay is one of the most complex and controversial aspects of
construction dispute resolution.1 It is a ‘strategically important’ defence2 and
its practical application and evaluation challenge most legal systems.
Unsurprisingly, it has been described as a ‘minefield’ in England;3 compared
to untangling a ‘knot’ in the United States (USA);4 and expressed as
‘unscrambling the egg’ in Canada.5 Common to all jurisdictions is that delay
analysis takes a quantum leap when interrupted by concurrency.6

The English courts have grappled with the doctrine but failed to offer
authoritative guidance.7 A Scottish recognition of apportionment8 created a
‘flurry of excitement’.9 However, that contribution has now been dismissed in
English law.10 Therefore, the questions must be asked:

1 The doctrine features as a component of establishing a factual causal connection between

‘competing’ liability events and a loss suffered. This includes a contractor’s entitlement
to an extension of time (a loss) based on an employer’s act of prevention (a liability
event) and an employer’s entitlement to liquidated damages (a loss) based on a
contractor’s failure to meet the contract date for completion (a liability event).
2 Barry B Bramble and Michael T Callahan, Construction Delay Claims (4th edition,
Aspen Publishers, United States, 2011) §1.01[D], 1-19.
3 Tom Wrzesien, ‘Concurrent delay – a map through a minefield’ (2005) 16 (10) Cons
Law 20.
4 JK Bidgood Jr, SL Reed, and JB Taylor, ‘Cutting the Knot on Concurrent Delay’,
Construction Briefings No 2008-2 (Thomson Reuters, 2008).
5 G Grenier, ‘Evaluating Concurrent Delay – Unscrambling The Egg’ (2006) 53 Constr
Law Reports (Canada), 3rd series, 46.
6 P Kutil and Andrew Ness, ‘Concurrent Delay: The Challenge to Unravel Competing
Causes of Delay’, (2007) Cons Law 18.
7 Shafim Kauser, ‘Time Gentlemen Please?’ (2002) 13 (5) Cons Law 20.
8 City Inn Ltd v Shepherd Construction Ltd [2007] CSOH 190, [2008] BLR 269, (2008) 24
Const LR 590; and on appeal [2010] CSIH 68, 2011 SC 127, 2011 SCLR 70, [2010]
BLR 473, 136 Con LR 5.
9 Dr Franco Mastrandrea, ‘Concurrent Causation in Construction Claims’ [2009] ICLR 75,
page 96.
10 Walter Lilly & Co Ltd v Mackay [2012] EWHC 1773 (TCC), [2012] BLR 503, 143 Con
LR 79, (2012) 28 Const LJ 622, in which Mr Justice Akenhead rejected the City Inn
approach (apportionment).

1
 (a) Can the English courts learn from the courts of other
jurisdictions?11
(b) Is there an international solution or alternative approach to
concurrent delay that can be injected into English law?

This author submits that the answer to both questions is ‘yes’ and will
establish this by comparing the benchmark position in English law to the legal
systems of Scotland, the USA, Canada, Hong Kong and Australia.12

The English law benchmark

The English courts have considered the ‘but for’ test, the burden of proof
approach and the dominant cause approach for the assessment of causation
and damage in cases of concurrent delay.13 However, the preferred approach
is derived from Henry Boot Construction v Malmaison Hotel.14 This is
described by the editors of Keating as ‘the now accepted approach to resolving
issues of true concurrency in the context of extension of time claims where
one of the competing causes of delay cannot be said to be the dominant
cause’.15 This is confirmed by a number of English cases,16 the most recent
being Walter Lilly v Mackay.17 Malmaison is, therefore, the English law
benchmark for this international comparative analysis.

The facts of Malmaison are straightforward. Malmaison Hotel pleaded

contractor culpable delay in defence of Henry Boot’s extension of time (EOT)
claim.18 Henry Boot asked the court to determine whether an arbitrator had

11 This question may be reversed to ask: what do parties to construction contracts and their
professional advisors need to know when working internationally in other jurisdictions?
This question and its answer may act as an aid to the increasing number of English
contracting organisations, engineering consultancies, claims consultancies, law firms and
barristers’ chambers establishing business operations in regions where English law does
not apply.
12 This paper concentrates on the principle of time including the employer’s right to
liquidated damages. It does not consider the other aspect of concurrent delay to which
different rules apply: that is, the recoverable losses of the contractor also known as ‘loss
and expense’. However, the paper will unavoidably cross this boundary in jurisdictions
where time and money are intrinsically linked (for example, the USA and Canada).
13 A detailed consideration of such approaches remains outside the scope of this paper. For
further information see Stephen Furst QC and The Hon Sir Vivian Ramsey (editors),
Keating on Construction Contracts (9th edition, Sweet & Maxwell, 2012) paras 9-062 to
9-066.
14 Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 Con
LR 32 (TCC).
15 Keating, note 13, para 9-067.
16 Motherwell Bridge Construction Ltd v Micafil Vakuumtechnik 81 Con LR 44 (TCC);
Royal Brompton Hospital NHS Trust v Hammond (No 7) [2001] EWCA Civ 206, (2001)
76 Con LR 148; Steria Ltd v Sigma Wireless Communications Ltd [2008] BLR 79, 118
Con LR 177 (TCC); Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848
(Comm), [2011] BLR 384, 136 Con LR 190; and Walter Lilly: note 10.
17 Walter Lilly: note 10.
18 This argument is a typical concurrent delay defence. See Kutil and Ness: note 6. ‘The
owner’s first line of [defence] is simply that the contractor failed to demonstrate that the
owner was the cause of the delay. Second, the owner can argue that its delay was not on
the critical path and did not cause the overall project delay. Third, the owner can argue
that the contractor failed to mitigate the effect of the owner-caused delay. Fourth, the

2
jurisdiction under the EOT provision19 to take account of the facts and matters
cited by Malmaison Hotel to establish that the causes of delay were the fault of
Henry Boot.

The court decided that the arbitrator did have jurisdiction. Mr Justice Dyson
(as he then was) held that the architect, when determining the delaying effect
of a relevant event under clause 25, is not precluded from considering the
effect of contractor culpable events, notwithstanding the existence of an
‘admitted delay’ on the part of the employer:
‘In my view, the respondent is entitled to advance these other matters by
way of defence to the EOT/I claim. It is entitled to say (a) the alleged
relevant event was not likely to or did not cause delay eg because the
items of work affected were not on the critical path, and (b) the true
cause of the admitted delay in respect of which the claim for an
extension of time is advanced was something else. The positive case in
(b) supports and fortifies the denial in (a). The respondent could limit its
defence to the claim by relying on (a), but in my view there is nothing in
clause 25 which obliges it to do so.’20 [emphasis added]

The English courts, however, have side-stepped the full effect of this judgment
in favour of a restrictive interpretation. This is premised on an ‘agreement’21
between the parties to the case:
‘… 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.’22

This agreement, however, was one between the parties and not part of the
judgment of Mr Justice Dyson. Nonetheless, it is widely represented as a
general principle of English law on concurrent delay, known as the
‘Malmaison approach’. It is deemed to support the proposition that the
architect, when determining the delaying effect of a relevant event under
clause 25, is not permitted to consider the effects of other events.23

The Malmaison approach is enshrined in Core Principle 9 of the Society of

Construction Law Delay and Disruption Protocol (the Protocol):

owner can show that the contractor was responsible for a concurrent delay that negated
the compensability of the owner’s delay. Fifth, the owner can argue that the contractor
failed to provide sufficient evidence for the trier of fact to segregate the owner’s delay
from the contractor’s delay.’
19 Standard Form of Building Contract, 1980 edition, Private with Quantities, as amended,
Joint Contracts Tribunal, Clause 25.
20 Malmaison, note 14, para [15].
21 Also referred to as ‘common ground’.
22 Malmaison, note 14, para [13].
23 ‘Other events’, in this context, means ‘contractor culpable events’.

3
 ‘Where Contractor Delay to Completion occurs or has effect
concurrently with Employer Delay to Completion, the Contractor’s
concurrent delay should not reduce any EOT due.’24

The Malmaison approach has also been applied in subsequent judgments. In

Steria v Sigma, His Honour Judge Davies observed that Mr Justice Dyson, ‘…
as a judge with such wide experience in the field, noted the agreement without
adverse comment.’25 [emphasis added]
In Walter Lilly, Mr Justice Akenhead considered that Mr Justice Dyson
‘endorsed that common ground’ and had ‘run with the ball’. He explained:
‘... the English approach [is] that the Contractor is entitled to a full
extension of time for the delay caused by the two or more events
(provided that one of them is a Relevant Event) ...’26 [emphasis added]

After reviewing the main English authorities, he confirmed:

‘I am clearly of the view that, where there is an extension of time clause
such as that agreed upon in this case and where delay is caused by two
or more effective causes, one of which entitles the Contractor to an
extension of time as being a Relevant Event, the Contractor is entitled to
a full extension of time … the whole period of delay caused by the
Relevant Events in question.’27

The question must, therefore, be asked: why have the English courts favoured
this restrictive interpretation, contrary to the full judgment of Mr Justice
Dyson?28 The editors of Keating offer the rationale that, if the parties have
agreed a series of relevant events in their contract entitling a contractor to an
EOT, then they must have contemplated the possibility of more than one
effective cause of delay.29

This reason was approved in both Steria and (more recently) in Walter Lilly:
‘There is nothing in the wording of clause 25 which expressly suggests
that there is any sort of proviso to the effect that an extension should be
reduced if the causation criterion is established.’30

However, this author respectfully submits that such rationale does not justify
the resistance of Mr Justice Dyson’s full judgment. Silence within the

24 The Society of Construction Law Delay and Disruption Protocol (SCL, 2002), page 7:
www.eotprotocol.com. It should be noted that the Protocol is merely a statement of
principles and does not have legal effect unless incorporated into a contract. It is,
however, a respected document and may be persuasive in certain circumstances.
25 Steria v Sigma, note 16, para [131].
26 Walter Lilly, note 10, para [366].
27 Walter Lilly, note 10, para [370].
28 See the main text to notes 18-22 for the crux of the judgment, in particular, a quoted
extract.
29 Keating, note 13, para 8-025. The editors of Hudson apply a similar explanation: see
Nicholas Dennys, Mark Raeside and Robert Clay (general editors), Hudson’s Building
and Engineering Contracts (12th edition, Sweet & Maxwell, 2010),
para 6-060.
30 Walter Lilly, note 10, para [370].

4
contract cannot by itself preclude an architect from considering contractor
culpable delay. As Mr Justice Dyson acknowledged: ‘the respondent is
entitled to advance these other matters by way of defence’.31

Therefore, the only plausible explanation can be the prevention principle.32

Indeed, Mr Justice Akenhead described the prevention principle as ‘part of the
logic’ in Walter Lilly.33 Similarly, the Protocol offers the prevention principle
justification.34 This is logical and (more) persuasive when considered
alongside an entitlement to loss and expense and the principle of ‘time but no
money’.35 This explanation was favoured by Mr Justice Edwards Stuart in De
Beers v Atos Origin IT Services.36

However, the application of the prevention principle to cases of concurrent

delay has been doubted. Mr Justice Hamblen emphasised in Adyard Abu
Dhabi37 that it runs contrary to the House of Lords decision in Trollope &
Colls v North West Metropolitan Regional Hospital Board,38 because the act
of prevention must ‘render it impossible or impractical for the other party to
do his work within the stipulated time’.39 Such an outcome cannot occur when
the contractor is already in culpable delay.40 This approach was approved by
Mr Justice Coulson in Jerram Falkus v Fenice Investments.41 However, it has
recently been suggested that ‘there are some difficulties’ with this approach
and that the prevention principle is assumed to apply unless the contract
expressly states a contrary intention.42

Consequently, the parameters of the English law benchmark have become

blurred, as a restrictive interpretation of Malmaison has become enshrined as a

31 Malmaison: main text to note 20. Indeed it would have been curious to reach any other
finding, since to do so would have made the concurrent delay defence redundant and
non-existent in the absence of an express contractual right.
32 See Hamish Lal, ‘Claims for Extensions of Time: A Turning Point?’ (2010) 21(10) Cons
Law 6; Brodie McAdam, ‘Apportionment and the Common Law: Has City Inn Got it
Wrong?’ (2009) 25 Const LJ 79, page 90; and Jeremy Winter, ‘How Should Delay be
Analysed – Dominant Cause and its Relevance to Concurrent Delay’, SCL Paper 153
(January 2009), page 20: www.scl.org.uk.
33 Walter Lilly, note 10, para [370].
34 The Protocol, note 24, para 1.4.12. The justification applies to Core Principle 9, set out in
the main text to this note.
35 Generally, a contractor who receives an EOT for concurrent delay will not receive loss
and expense for his difficulty in fulfilling the ‘but for’ test of causation. Hence the
position under English law is often described as ‘time but no money’.
36 De Beers UK Ltd v Atos Origin IT Services UK Ltd [2010] EWHC 3276 (TCC), [2011]
BLR 274, 134 Con LR 15, paras [177]-[178]. Mr Justice Edwards Stuart made indirect
reference to the Malmaison approach.
37 Adyard Abu Dhabi: note 16.
38 Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973]
1 WLR 601 (HL), [1973] 2 All ER 260, 9 BLR 60.
39 Adyard Abu Dhabi, note 16, para [282], citing Lord Denning in Trollope & Colls, note
38, [1973] 1 WLR 601, page 607.
40 This is because the contractor would have suffered delay in any event.
41 Jerram Falkus Construction Ltd v Fenice Investments Inc (No 4) [2011] EWHC 1935
(TCC), [2011] BLR 644, 138 Con LR 21, paras [49] and [52].
42 John Marrin, ‘Concurrent Delay Revisited, SCL Paper 179 (February 2013), page 7:
www.scl.org.uk.

5
general principle of English law. This has given rise to a debate: Malmaison v
the approach in Scots law (apportionment).

Scots law position

The position under Scots law arises from the City Inn litigation,43 which the
editors of Keating describe as ‘a radical and important departure from the
[Malmaison] approach.’44 The employer’s defence, in that case, reflected the
employer’s defence in Malmaison.45 City Inn argued that Shepherd
Construction had not been delayed by the relevant events it relied upon. If it
had, then such delays were concurrent with Shepherd’s culpable delay. In the
Outer House, Lord Drummond Young concluded that Shepherd was delayed
by concurrent relevant events and awarded a nine week EOT.46 He reached
his decision by apportioning delay between the relevant events and contractor
culpable events taking account of the relative causative importance and degree
of responsibility for such delays.47 This decision was upheld on appeal to the
Inner House.48

City Inn has received a frosty reception amongst supporters of the restrictive
interpretation of Malmaison. They present City Inn as:
(i) an alternative to Malmaison; and
(ii) a ‘rule’ for apportionment.

Herein lies the source of the Malmaison v apportionment debate. This author
submits that such perspectives may be unfounded and the debate may not need
to exist. City Inn does not have to be viewed as an alternative to Malmaison.
Neither should it be deemed as creating a rule for apportionment.

City Inn as an alternative to Malmaison?

The matter before the court in City Inn concerned the assessment of an EOT,
given concurrent causes of delay where some were relevant events and others
contractor liability events.49 To this extent, recognition of apportionment was
nothing more than the next logical step beyond the full judgment of Mr Justice
Dyson in Malmaison.50 Lord Drummond Young merely suggested a method

43 City Inn: note 8.

44 Keating, note 13, para 8-027.
45 See the main text to notes 14-22.
46 City Inn: note 8. Shepherd’s total EOT application was eleven weeks.
47 Lord Drummond Young confirmed that apportionment of prolongation costs should
reflect the EOT.
48 City Inn: note 8.
49 Lord Drummond Young explained (para [19]) that ‘the critical question’ is ‘how long an
extension is justified by the relevant event’. The contract requirement is for the architect
to ‘exercise his judgment to determine the extent to which completion has been delayed
by relevant events’. [emphasis added].
50 In Malmaison, note 14, Mr Justice Dyson was not asked to consider a method for
assessing an EOT. The question was purely whether the arbitrator had the jurisdiction to
consider the impact of contractor culpable events. The judge confirmed that he did. The
question and the answer did not extend to methods of assessment.

6
for quantifying matters that (according to Mr Justice Dyson) may be
considered when assessing an EOT.51

A rule for apportionment?

The editors of Keating summarise the key principle of the Outer House’s
decision in this way:
‘… where there are concurrent causes of delay, none of which can be
described as dominant, the delay should be apportioned between the
Relevant Events and the contractor’s risks events.’52 [emphasis added]

It is correct that the Outer House recognised the necessity for a preliminary
dominant cause test.53 However, the court did not hold that the delay ‘should
[otherwise] be apportioned’. This is patently clear from the judgment, in that
Lord Drummond Young used the words ‘may [apportion]’ not ‘should
[apportion].’54 When he departed from using ‘may’, he avoided creating a
‘rule’, stating that ‘apportionment will frequently be appropriate’.55 The
inference is that apportionment will not always be appropriate. Thus,
flexibility was paramount in Lord Drummond Young’s judgment, as was the
requirement to be ‘fair and reasonable’ in accordance with the express terms
of the contract.

Perspectives on City Inn

City Inn has its supporters and critics. Supporters contend that it achieves
justice by avoiding the ‘all or nothing’ outcome of the restrictive interpretation
of Malmaison. Critics say that the parties know where they stand with ‘time
but no money’ whereas the vital question of how to apportion arises with
apportionment. Thus, the risk noted by the editors of Building Law Reports is
that if both causes are of equal significance then this may result in a 50:50
apportionment.56 This is a valid concern. However, it should be noted that:
o Neither the Outer House nor Inner House in City Inn ruled out the
causative potency of a dominant cause as a preliminary step
o Shepherd was awarded a nine-week EOT out of a claim of eleven
weeks, such that apportionment achieved a similar result to the
restrictive all-or-nothing interpretation of Malmaison

51 This is apparent from the choice of words used for the grounds of appeal that City Inn
put before the Inner House on appeal. The main ground, for the purpose of this paper,
had nothing to do with the trigger for an EOT but concerned whether the Outer House
erred in law. See the judgment of the Inner House, note 8, para [16(3)]: ‘In the
approach taken…to assessing concurrent delaying events for the purposes of clause 25
of the contract, as regards (i) how a period of concurrent delay is to be defined, (ii) how
any period of concurrent delay is to be assessed and (iii) how to treat periods of
concurrent delay in the calculation of extensions of time.’ [emphasis added]
52 Keating, note 13, para 8-027.
53 This seems to be consistent with the position in English law.
54 See, for example, City Inn in the Outer House, note 8, paras [18] and [22], where the
word ‘may’ is used.
55 City Inn, note 8, para [157]. It should be noted that he said ‘frequently’ not ‘always’.
56 See [2010] BLR 473, page 476.

7
 o English judges are highly experienced in apportionment under
contributory negligence legislation.

The editors of Keating argue that the court placed too great a weight on the
words ‘fair and reasonable’. This author agrees. Indeed, ‘fair and reasonable’
might justify other approaches aside from apportionment.57 However, with
respect, such criticism is inadequate by itself to deny the possibility of
apportionment.

City Inn has notably not been welcomed by the English courts. It is
respectfully submitted that the relevant decisions are dismissive without
explanation, lack persuasive reasoning and are predicated on an unexplained
affinity with the restrictive interpretation of Malmaison.58 This can be seen
from Adyard Abu Dhabi:
‘… the English law approach would be to recognise that the builder is
entitled to an extension of time, not an apportionment – see, for
example, Malmaison at para 13.’59

It is evident to a greater degree in Walter Lilly:

‘The fact that the Architect has to award a “fair and reasonable”
extension does not imply that there should be some apportionment in the
case of concurrent delays … It therefore follows that, although of
persuasive weight, the City Inn case is inapplicable within this
jurisdiction.’60

It follows that Malmaison and City Inn are viewed as rivals. This author
submits that so long as the English courts continue with their current
confirmation of the restrictive interpretation of Malmaison, so will
apportionment be rejected under English law. In fact, the judgments are not
necessarily rivals. If the courts were to apply the full judgment of
Malmaison,61 then the rivalry may subside, since apportionment might exist as
one method amongst others to assess the impact of a relevant event in the
context of contractor culpable delay.62 Such potential becomes apparent when
the approach of the US courts is considered.

The United States approach

The USA holds a prominent position in the field of concurrent delay and is
thought by some to indicate how delay analysis will develop in the UK.63 The

57 For example, see the approach of the US courts to network or CPM schedules, discussed
below.
58 That is, aside from the high level judicial reasoning referenced in the main text to notes
30-36.
59 Adyard Abu Dhabi, note 16, para [288].
60 Walter Lilly, note 10, para [370].
61 See the summary in the main text to notes 14-22.
62 See note 57.
63 Stuart C Nash, ‘Delay and Disruption: Legal Considerations’, SCL Paper D14 (August
2002), page 1: www.scl.org.uk.

8
reason is that the US courts are more experienced than the English in the
complexities of concurrent delay.64 They offer three approaches:
(i) Time but no money;
(ii) Apportionment; or
(iii) Responsibility based on a network or critical path method
(CPM).65

Time but no money

The roots of ‘time but no money’ are traceable to the earliest US concurrent
delay cases when a strict ‘rule against apportionment’ applied.66 In Jefferson
Hotel v Brumbaugh, Jefferson argued:

o it was responsible for a small portion of delay;

o the majority of delay was the responsibility of Brumbaugh;
o the court should attempt to apportion delay.

The court refused the request to apportion, being unable to undertake the task
‘with any degree of certainty’ and bound by an existing ‘rule against
apportionment’.67

That rule was subsequently articulated by the US Court of Claims in

Greenfield Tap & Die Corp v US:
‘The claim … even if satisfactorily proven, would not be recoverable …
this court has held that where both parties to a contract are responsible
for delay in its performance the court will not undertake to apportion the
responsibility for the delays.’68

In Commerce International Co v US, the same court found that the US Army
had severely delayed Commerce International in the reconstruction of 500
tanks required for hostilities in Korea.69 However, Commerce International
ignored its own ‘concurrent and inseparable’ causes of delay. The court
rejected Commerce International’s case and held that ‘there can be no
recovery where the defendant’s delay is concurrent or intertwined with other
delays’. Thus, the rule against apportionment applied notwithstanding the
court’s inference as to the potential for recovery if the concurrency ‘knot’
could be untangled.

64 The earliest of the US cases on concurrent delay significantly pre-dates its English
equivalents and there is no shortage of reported authorities. US law on concurrent delay
has been evolving over the past 145 years since Stewart v Keteltas 36 NY 388 (1867).
65 Bramble and Callahan, note 2, §11.09, 11.110.
66 In Jefferson Hotel Co v Brumbaugh 168 F 867 (4th Cir 1909), three cases were cited as
authority for such a rule: Stewart v Keteltas; Heckmann v Pinkney 81 NY 211 (1880) and
Weeks v Little 89 NY 566 (1882).
67 Jefferson Hotel, note 66, page 874.
68 Greenfield Tap & Die Corp v US 68 Ct Cl 61, 1929 WL 2484 (Ct Cl), page 10.
69 Commerce International Co Inc v US 167 Ct Cl 529, 338 F 2d 81 (1964), pages 87
and 90.

9
Apportionment
The ‘time but no money’ rule has the hallmarks of the restrictive interpretation
of Malmaison coupled with the ‘but for’ test applicable in English law to loss
and expense. However, the influence of a ‘modern trend toward
apportionment … by segregation of delaying events wherever possible’
dictates that it applies less rigorously in the USA.70
In Calumet Construction v Metropolitan Sanitary District of Greater Chicago,
the Appellate Court of Illinois explained:
‘[The traditional rule against apportionment] … is now being abandoned
… in [favour] of the more modern rule of apportionment because of the
increasing popularity of liquidated damages clauses … due to the
increasing complexity of contractual relationships … and … due to the
fact that the older rule is too harsh in its application … This trend in
[favour] of apportionment is similar in nature to the trend in the courts to
apply a comparative negligence standard in tort cases.’71

The US courts will apportion the recovery of delay costs or damages when the
evidence permits the segregation of costs arising from the parties’ respective
causes. In Coath & Goss Inc v US, the US Court of Claims held:
‘Where both parties contribute to a delay neither can recover damage,
unless there is in the proof a clear apportionment of the delay and the
expense attributable to each party.’72

Blinderman Construction v United States affirmed this approach.73 In that

case, the US Court of Appeals found that the Armed Services Board of
Contract Appeals made no finding as to the extent of the Navy’s unreasonable
delay. It held that Blinderman should be given the opportunity to discharge
the duty of apportioning its delays from those of the Navy on remand to the
Board.

That approach was more recently approved in Essex Electro Engineers v US.74
Essex challenged a finding of ‘time but no money’ by the Armed Services
Board of Contract Appeals. The US Court of Appeals found that ‘the
sequential nature of Essex’s submissions and the government’s responses
[rendered] each party’s delays inherently apportionable’.75

In contrast to that approach, recovery will be denied if the segregation of delay

costs is impossible. In PCL Construction Services v US, apportionment was
refused when the US Court of Claims was unable to apportion delays

70 Philip L Bruner and Patrick O’Connor, Bruner and O’Connor on Construction Law,
(Thomson Reuters Westlaw, 2012), §15:70.
71 Calumet Construction Corp v Metropolitan Sanitary District of Greater Chicago 178 Ill
App 3d 415 (1988), page 420.
72 Coath & Goss Inc v US 101 Ct Cl 702 (1944), pages 714-715.
73 Blinderman Construction Co Inc v US 695 F 2d 552 (1982) (US Ct of Appeals, Fed
Circuit).
74 Essex Electro Engineers Inc v US 224 F 3d 1283 (2000) (US Ct of Appeals, Fed Circuit).
75 Essex Electro Engineers, note 74, page 1292.

10
concerning the construction of a visitor centre and parking structure at the
Hoover Dam.76

Responsibility based on a network or CPM

This approach has been described as ‘the most significant technological
change affecting construction litigation in the latter half of the twentieth
century’, enabling an alternative to a strict ‘winner takes all’ approach to
causation.77 It reflects the parties’ responsibilities for critical delay identified,
segregated and allocated via a network or CPM schedule. It is a more
scientific technique deemed to be the ‘best evidence of the critical path and of
causation of time impacts.’78 There is a judicial preference in the USA for this
approach, given the advanced capability of the courts in matters of delay
causation.79

It can be seen, therefore, that CPM offers an alternative to apportionment.

Where CPM is not applied, the US recognition and acceptance of
apportionment presents a stark contrast to the approach of the English courts
in that the US courts view apportionment as a parallel approach to ‘time but no
money’. Apportionment is treated as a method of assessing liability provided
that the claimant is able to segregate its liability from that of the respondent.80
If the claimant is unable to apportion with clarity then the default ‘time but no
money’ applies.

Canadian approaches
Canada lacks literature on concurrent delay.81 This author considers this to be
the influence of US cases and texts which have removed the necessity for the
Canadian courts to reinvent the wheel. However, it also represents a simple
approach in Canada to apportionment.

Unlike the English and US systems, the Canadian courts do not recognise an
all or nothing default approach which is thought to lead to disproportionate
results.82 Furthermore, unlike the US courts, the Canadian system does not
place a high evidential burden on a claimant as a prerequisite to
apportionment. The courts simply roll up their sleeves and apportion the

76 PCL Construction Services v US 47 Fed Cl 745 (2000).

77 Andrew Ness, ‘Whither Construction Law? How can Construction Law Continue to
Grow and Evolve in the Era of “The Vanishing Trial”?’ (2010) 30 Cons Law 5.
78 Bruner and O’Connor, note 70, §15:5.
79 Bruner and O’Connor, note 70, §15:128.
80 Interestingly, it is triggered as a matter of common sense and not (as under Scots law as
in City Inn) by the necessity to be ‘fair and reasonable’.
81 See, for example, the Canadian construction law texts: Thomas G Heintzman and
Immanuel Goldsmith, Heintzman and Goldsmith on Canadian Building Contracts (4th
edition, Carswell, Toronto, 2012) and Halsbury’s Laws of Canada: Construction (1st
edition, LexisNexis Canada, 2008).
82 Grenier: note 5.

11
liability of the parties.83 Apportionment is the standard reaction of the
courts.84

The Canadian courts have introduced apportionment with considerable ease.

The justification has two roots:
(i) The courts must ‘do the best they can’; and
(ii) Stretching contributory negligence legislation.

The courts must ‘do the best they can’

This describes the approach of the Canadian courts to ascertaining damages
where a claimant has suffered a loss.85 In the Canadian Supreme Court case of
Wood v Grand Valley Railway,86 Davies J cited the English Court of Appeal
case of Chaplin v Hicks with approval: in particular, that Lord Justice
Vaughan Williams identified a lack of jury guidance in the assessment of
damages such that in certain circumstances ‘the jury must do the best they
can’ whereby ‘the amount of their verdict will really be a matter of
guesswork’.87 The proposition that the court must ‘do the best it can’ now
forms the foundation of the assessment of damages in Canada.88 This
approach has given the Canadian courts the ability to allocate responsibility to
cases of delay on a broad brush approach.89 This may rapidly lead to an
equitable solution in a complex concurrent delay case, although it may lack
certainty of outcome.90

Stretching contributory negligence legislation

Contributory negligence legislation entitles the court to apportion liability
between a claimant and defendant tortfeasor. It exists independently within
each of the common law provinces in Canada,91 although it is not consistent in
its application. The ability of a claimant to use this justification has not been

83 Grenier: note 5.
84 For cases where apportionment has been applied see RB Reynolds and SG Revay,
‘Concurrent Delay: A Modest Proposal’, (2007) 1 Journal of the Canadian College of
Construction Lawyers 199, pages 200-202. For example, Foundation Co of Canada Ltd
v United Grain Growers Ltd 1995 CanLII 3392 (SCBC).
85 Reynolds and Revay, note 84, page 205.
86 Wood v Grand Valley Railway (1915) 51 SCR 283, 21 DLR 614 (SCC).
87 Chaplin v Hicks [1911] 2 KB 786 (EWCA), page 792.
88 See the references in Reynolds and Revay, note 84, pages 206-207, to cases where the
court strived to ‘do the best it can’: Penvidic Contracting Co v International Nickel Co
[1976] 1 SCR 267, 53 DLR (3d) 748 (SCC) and Potter Station Power Co v Inco Ltd
(1998) 43 CLR (2d) 53 (Ont Gen Div), additional reasons at 1998 Carswell Ont 4986.
89 Reynolds and Revay, note 84, page 207.
90 It may reduce litigation costs (and indeed the need for litigation) in that the parties may
‘roll up their own sleeves’ and undertake the same ‘broad brush’ exercise that the courts
would otherwise undertake.
91 There are ten provinces in Canada and three territories. All, with the exception of
Quebec, operate a common law legal system. The provinces comprise Ontario, Quebec,
Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island,
Saskatchewan, Alberta and Newfoundland & Labrador. The territories comprise
Northwest Territories, Yukon and Nunavut.

12
recognised in all provinces. However, the courts of British Columbia and
Nova Scotia have extended its application to contract claims.92

In British Columbia, section 1(1) of the Negligence Act93 establishes a duty

‘to make good the damage or loss … in proportion to the degree to which each
person was at fault’. Under section 1(2), ‘if it is not possible to establish
different degrees of fault, the liability must be apportioned equally’. The
equivalent legislation in Nova Scotia is the Contributory Negligence Act.94
The Civil Code of Quebec contains equivalent provisions in that Article 1478
is not limited to negligence.

Similar provisions exist in English law under the Law Reform (Contributory
Negligence) Act 1945.95 However, the Act has been doubted as a defence to a
claim for damages based purely in contract.96 Therefore, such an approach
would be of no effect in English law.

Hong Kong approaches

Concurrent delay is considered to be “one of the more ambiguous areas of
Hong Kong construction law” with “no definite solutions”.97 The Protocol,
therefore, has gained recognition in Hong Kong98 which applies the
‘Malmaison approach’.

Notwithstanding this, the Outer House decision in City Inn has been positively
received by the Court of First Instance. Deputy Judge Simon Westbrook SC,
in W Hing Construction Co Ltd v Boost Investments Ltd, approved the
conclusions drawn by Lord Drummond Young including his recognition of
apportionment.99 This may be indicative of a movement in Hong Kong in
favour of apportionment.

Australian approaches
Australian law is deemed ‘less than clear’,100 with ‘… no clear judicial
guidance on principles that govern the correct approach’.101 Publishers of
Australian standard forms have attempted to rectify this by prescribing

92 Reynolds and Revay, note 84, page 208.

93 Negligence Act, c 333 (BC).
94 Contributory Negligence Act, c 95 (Nova Scotia).
95 This opens up the path for a similar argument in English law. Indeed, it is interesting to
note that Lord Drummond Young, in the Outer House decision of City Inn, note 8, para
[159], likened apportionment of delay to ‘the apportionment of liability on account of
contributory negligence or contribution among joint wrongdoers’, although he did not
mention the 1945 Act by name.
96 See Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852, [1988] 2 All ER 43,
[1988] 1 Lloyd’s Rep 19, (1988) 4 Const LJ 75 (CA).
97 Jacob C Jørgensen. J (editor), Delay Clauses in International Construction Contracts
(Kluwer Law International BV, 2010), page 200.
98 The Society of Construction Law Hong Kong was founded in 2001; see www.scl.hk.
99 W Hing Construction Co Ltd v Boost Investments Ltd [2009] 2 HKLRD 501, para [61].
100 Paul Tobin, ‘Concurrent and Sequential Causes of Delay’ (2007) 24 ICLR 142,
page 146.
101 Tobin, note 100, page 142.

13
procedures for the assessment of concurrent delays.102 However, this has not
entirely solved the problem. Firstly, not all forms of contract in Australia
adopt a prescriptive approach. Secondly, the standard forms are not as clear as
they could be. Consequently, the assessment and resolution of concurrent
delay may be taken out of the hands of the parties and placed into the hands of
judges and arbitrators.

A useful illustration is the Australian Standards (AS) suite of contracts. The

showcase example is the fifth paragraph of clause 35.3 of form AS 2124-1992.
It provides:
‘Where more than one event causes concurrent delays and the cause of
at least one of those events, but not all of them, is not a cause referred to
in the preceding paragraph, then to the extent that the delays are
concurrent, the Contractor shall not be entitled to an extension of time
for Practical Completion.’103

This provision is highly prescriptive compared to the fair and reasonable

approach under the JCT 80 clause 25.104 Jim Doyle explains that it ‘operates
to wholly deprive the contractor of entitlement to extension of time’.105
Contractors would naturally despise such a provision. Nevertheless, it is
useful in that it articulates what happens in the event of concurrent delay.
Paul Tobin, however, points out that the contract does not define ‘concurrent
delays’.106 Therefore, whilst this approach is commendable, it contains

102 Tobin, note 100, page 146. This approach highlights the importance of the construction
contract as the proper arena for the parties to control their commercial destiny. This is a
unique approach because, as the editors of Hudson, note 29, para 6-059 identify, the
complications of interacting delays are so diverse that many draftsmen prefer to leave
these problems unaddressed for tribunals to apply ‘ordinary causation principles’. It
follows, as noted by the editors of Keating, note 13, para 9-058, that any architect or
project manager making an assessment under the contract then lacks guidance in ‘how to
act and what conclusions to draw’.
103 Australian Standards, General Conditions of Contract. This example is referred to by
Tobin, note 100, page 142, and by Jim Doyle, ‘Concurrent Delays in Contracts’ (2007)
112 Australian Construction Law Newsletter 22.
104 JCT 80: note 19.
105 Doyle: note 103.
106 Tobin, note 100, page 146. As observed by Bidgood et al, note 4, the problem with a
failure to define concurrent delay is that ‘concurrency’ has various connotations. This
was recognised by Lord Osborne in City Inn, note 8, in that ‘concurrent delay’ means
different things to different people. He said at para [79] that it is ‘important in the
interests of clarity, to try to disentangle this confusion’. Unfortunately, however, the
global construction industry lacks a standard definition. The nearest to a standard
definition is that used in the Protocol, note 24. John Marrin, ‘Concurrent Delay’ (2002)
18(6) Cons Law 436, has described concurrent delay as ‘a period of project overrun
which is caused by two or more effective causes of delay which are of approximately
equal potency’. This has been adopted by the editors of Keating, note 13, para 8-025. It
has also been approved in Adyard Abu Dhabi, note 16, para [277], as a ‘useful working
definition’. Two types of concurrency are thought to exist: (a) simultaneous or
concurrent causes with concurrent effects (referred to in the Protocol, note 24, page 53 as
‘true concurrency’); and (b) sequential causes with concurrent effects. For other useful
commentaries and discussion on the definition of concurrency see: Bidgood et al, note 4;
Keith Pickavance, Delay and Disruption in Construction Contracts (4th edition, Sweet &
Maxwell, 2010); David W James., Concurrency and Apportioning Liability and
Damages in Public Contract Adjudications, 20 Public Contract Law Journal, page 490.

14
drawbacks. A dispute under clause 35.5 of this AS form may still require
resort to the courts. This would take the parties back to square one and the
vagaries of judicial reasoning which the clause was designed to avoid.

Another example includes forms AS 4000-1997107 and AS 4902-2000.108 In

each case, the first paragraph of clause 34.4 provides:
‘When both non-qualifying and qualifying causes of delay overlap, the
Superintendent shall apportion the resulting delay to WUC [work under
the Contract] according to the respective causes’ contribution.’

This is another useful attempt to resolve the concurrency dilemma before it

arises. However, Paul Tobin identifies conceptual problems with this clause:
the problem of accurately determining the allocation of liability in the
apportionment exercise, since the contracts lack a definition of ‘apportion’.109

Notwithstanding these direct attempts to tackle concurrency, it has been

suggested that the use of the contract might be unsuccessful on account of the
prevention principle.110 This is for the same reasons proffered to justify the
validity of a restrictive interpretation of Malmaison.111 However, as
considered above, that justification has been questioned by the English
courts.112 Furthermore, as a matter of contract, if the parties have expressly
agreed an approach to concurrent delay then effect must be given to that
agreement. The Australian case of SMK Cabinets v Hili Modern Electrics
supports this proposition:
‘… whatever the correct theory may be as to the basis of the doctrine of
prevention in relation to liquidated damages, the parties can effectively
manifest by their contract an intention that the contractor shall be liable
notwithstanding the prevention.’113

Recognition of this can be found in England114 although doubts have been

expressed as to whether the English courts would uphold such an approach.115

107 Australian Standards, General Conditions of Contract.

108 Australian Standards, General Conditions of Contract for Design and Construct.
109 Tobin, note 100, page 151. Such reasoning has been proffered by the learned editors of
Building Law Reports as a practical consideration of embracing apportionment, as
applied in City Inn: see the main text to note 56.
110 Tobin, note 100, pages 148-149.
111 See note 31 and linked main text. That is, the employer will wrongly benefit from his
breach if he is not held liable for his full contribution to the concurrent delay.
112 See the main text to notes 37-42.
113 SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VR 391 (VSC).
114 Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd [1976] BLR 111 (CA),
page 121, Salmon LJ. In the context of concurrency cases see Walter Lilly, note 10, para
[370], in which Akenhead J indirectly acknowledged the potential for the use of the
contract: ‘There is nothing in the wording of Clause 25 which expressly suggests that
there is any sort of proviso to the effect that an extension should be reduced if the
causation criterion is established.’ See note 14 and its linked main text. See also the
main text to note 42.
115 See Wrzsien, note 3; McAdam, note 3232, page 91; and Dado Hrustanpasic, ‘Time-Bars
and the Prevention Principle: Using Fair Extensions of Time and Commonsense
Causation’ (2012) 28 Const LJ 379, page 385.

15
In the event that the parties fail to address concurrent delay under the contract,
then the position under Australian law would reflect the approach of English
law by reverting to the common law. However, Jim Doyle suggests that
English cases, whilst not binding, may be persuasive, given that the common
law position in Australia lacks adequate legal authority.116 He observes that in
Thiess Watkins White Construction v Commonwealth the New South Wales
Supreme Court took a similar approach to Malmaison.117

Conclusions
This paper posed two questions. The first was: can the courts in England learn
from the courts of other jurisdictions? The answer is ‘yes’.118 The second
was: is there an international solution or alternative approach to concurrent
delay that can be injected into English law? The answer is ‘yes’:
‘apportionment’. Every jurisdiction considered in this paper presents
apportionment as a balanced outcome and modern solution to the concurrency
dilemma. That is an approach which the editors of the Building Law Reports
once described as ‘an intellectually respectable one’ which ‘merits respect and
detailed consideration’.119

The author contends that the rejection of apportionment by the English courts
is premised on an incomplete application of the Malmaison judgment.
According to this author’s interpretation of the full judgment, the decision-
maker under a contract may take full account of contractor culpable events
when assessing an entitlement to an EOT.120 This means that the contractor is
not automatically entitled to full EOT for the period of critical delay caused by
a relevant event. Rather, the contractor must discharge the burden of proof.121

The method of assessment is then a matter for the decision-maker in

accordance with the contract.122 The point emphasised by Mr Justice Dyson,
is that the decision maker is not precluded from considering contractor
culpable events. This author submits that this is a sound basis for the
proposition that apportionment, as a method of assessment, is not precluded as

116 Doyle, note 103, page 23. Support for this can be found in a list of concurrency and non-
critical delay cases prepared by Robert Fenwick Elliott on behalf of SCL Australia. See
Society of Construction Law Australia, ‘Aide Mémoire of Some Key Cases:
Concurrency and Non Critical Delay’, (27th June 2011): www.scl.org.au. Only two out
of 15 cases are Australian (Kane Constructions Pty Ltd v Sopov [2005] VSC 237 (VSC)
and March v Stramare Pty Ltd [1991] HCA 12, [1991] 171 CLR 506, (1991) 9 BCL
215); and neither directly addresses the subject of concurrent delay.
117 Thiess Watkins White Construction Ltd v Commonwealth, unreported, Giles J (NSWSC,
23 April 1992), cited in Doyle, note 103, pages 23-24.
118 This author suggests that construction dispute resolution practitioners ought to look
beyond their own backyard. The reason is that construction dispute resolution is
becoming increasingly international. For example, the parties to a major international
project may select a dispute adjudication board or arbitral tribunal with members sourced
from all corners of the globe, each with differing approaches and influences based on
personal experience of approaches adopted in their home jurisdictions.
119 See note 8, City Inn Ltd v Shepherd Construction Ltd, [2008] BLR 269, page 271.
120 That is, of course, subject to any prohibitions in the contract conditions.
121 This must follow the occurrence of a ‘triggering event’ to an EOT under the contract.
122 Under JCT 80, note 19, he must act in a ‘fair and reasonable’ manner; other contracts
may impose other standards of fairness.

16
an approach to concurrent delay under English law. Notwithstanding this, the
preference under English law is to provide the contractor with a full EOT.
Indeed, the dismissal of apportionment by Mr Justice Akenhead J in Walter
Lilly123 is reminiscent of the early US cases, which applied the so-called ‘harsh
rule against apportionment’ notwithstanding persuasive arguments to the
contrary.

For this reason, the English courts would doubtless find a review into the
approaches of other jurisdictions to be a pointless exercise. This is because
the international arena will only offer the same solution as Scotland:
apportionment. However, this author would suggest that the potential exists
for an operational review: that is to say, an investigation into the practical
application of apportionment to cases of concurrent delay within a common
law legal system.

It is submitted that the USA would be the most appropriate arena for that
investigation. Firstly, English law shares the default position applied by the
US courts: ‘time but no money’. Secondly, the USA has proved an ability to
embrace apportionment as an alternative to ‘time but no money’ thereby
demonstrating that the so-called rival approaches (‘time but no money’ and
apportionment) can co-exist.124 Thirdly, there are no adequate alternatives.
The Australian courts have seemingly followed the lead of the English courts.
The Scottish approach has been rejected by the English courts but approved in
Hong Kong. In Canada, contributory negligence legislation has justified
apportionment in certain provinces but this author doubts similar potential
under English law.125 The principle that the court must ‘do the best it can’
must also be doubted.126 Also, the Canadian approach may unhelpfully
promote rough justice.127

The US courts have also shown that difficulties with apportionment may be
overcome in that they only allow apportionment where there is, in the proof, a
clear apportionment of the delay and the expense attributable to each party.
The claimant must be able to segregate its own liability events from those of
the delaying party. With this preliminary hurdle in place, the only argument
against apportionment could be the risk of offending the prevention principle.
This has been expressed by English commentators, Mr Justice Akenhead in

123 Walter Lilly: note 10.

124 This has been the position for the past 68 years since the judgment of Coath & Goss: see
note 72 and linked main text.
125 That is, according to current authority. See Vesta v Butcher: note 9696.
126 The Canadian approaches, in this author’s submission, are clever justifications for
apportionment but are even less credible than the City Inn justification predicated on the
words ‘fair and reasonable’.
127 To some degree, the English courts are no stranger to this approach. The Technology
and Construction Court is familiar with the statutory adjudication regime, under which
adjudicators are sometimes said to deliver ‘rough justice’. However, the outcome of an
adjudicator’s decision is only binding upon the parties until referred to arbitration or
litigation for final resolution. Thus, the opportunity for a ‘fair hearing’ would be
severely lacking if the courts were given the ability to serve ‘rough justice’.

17
Walter Lilly and more forcefully expressed as a concern in Australia.128
However, the English courts have also indicated that concerns with the
prevention principle, in the context of concurrent delay, may be overcome.129

It is inevitable that the concurrency debate will continue, given a vacuum of

established jurisprudence in English law. The inherent danger of the existing
approach of the English courts is that an outright dismissal of apportionment
may set the English courts apart from what the rest of the world considers to
be plain logic. The consequence is that the approaches adopted in rival
common law jurisdictions may become recognised as more favourable and at
worse more credible in the modern international construction industry. The
English courts must, therefore, give apportionment the recognition that is
warranted by (at the very least) embarking upon a more detailed consideration
and analysis than currently demonstrated to-date, even if this ultimately results
in apportionment’s rejection in favour of the existing ‘time but no money’
status quo. In this author’s submission, outright rejection in the absence of a
considered justification will not end the debate.130

Until that day, this author recommends that the parties to construction
contracts help themselves. The appellate decision of the Inner House in City
Inn will remain for some time.131 Thus, an extreme measure may be for
English parties, who wish to apportion, to subject their contracts to Scots law.
However, the better approach, in this author’s submission, is a more thorough
use of the contract. The parties must, until this matter finally comes before the
higher courts, take the concurrency debate into their own hands and apply the
lessons of the Australian approach by using their contracts to effectively
address the dilemma in whatever way that they wish to deal with it on their
construction projects.

Matthew Cocklin is a solicitor practising in the construction team at

Devonshires Solicitors in London.

© Matthew Cocklin and the Society of Construction Law 2013

The views expressed by the author in this paper are his alone, and do not necessarily
represent the views of the Society of Construction Law or the editors. Neither the
author, the Society, nor the editors can accept any liability in respect of any use to
which this paper or any information or views expressed in it may be put, whether
arising through negligence or otherwise.

128 De Beers: note 36. See Tobin, note 100, page 156. See also Andrew Stephenson,
‘Concurrency, Causation, Commonsense and Compensation (Part 1)’ [2010] ICLR 166,
pages 194-195.
129 See notes 37-42 and linked main text and note 114.
130 City Inn had a fundamental psychological impact resulting in what Mr Justice Akenhead
in Walter Lilly, note 10, para [366], described as: ‘two schools of thought … which
currently might be described as the English and the Scottish schools’.
131 This means that parties under Scots law will reap the benefits of apportionment.

18
 ‘The object of the Society
is to promote the study and understanding of
construction law amongst all those involved
in the construction industry’

MEMBERSHIP/ADMINISTRATION ENQUIRIES
Jill Ward
The Cottage, Bullfurlong Lane
Burbage, Leics LE10 2HQ
tel: 07730 474074
e-mail: admin@scl.org.uk

website: www.scl.org.uk

19