THE entitlement to extension of time and penalties is the primary consideration in the analysis of construction delay. Perhaps as a result, concurrency or concurrent delay is an issue those involved in construction disputes love to debate.
A quick search online reveals a vast amount of ink which has been spilled in debating the various approaches to analysis and assessment of concurrent delays on construction projects. Debate around the subject stretches back over many years.
From as early as 1997, the term ‘concurrent delay’ has appeared in court case reports. One of the earliest is that of Norwest Holst v Cooperative Wholesale Society ([ 1997) EWHC Technology 356. There have been many discussions over the course of the last 25 years or more on how concurrent delay should be addressed, its analysis, and indeed, whether it exists at all. Much time and money must have been lost in the complex theoretical analyses that have resulted from such debates.
There have been many discussions over the course of the last 25 years or more on how concurrent delay should be addressed, its analysis, and indeed, whether it exists at all. Much time and money must have been lost in the complex theoretical analyses that have resulted from such debates.Could we perhaps conclude that concurrent delay is almost inevitable on larger projects? And in any case, might a more pragmatic approach be helpful in reducing the likelihood of such arguments arising? Or at the very least a pragmatic approach should minimise the time spent in the arguments that result.
Concurrency’s definition and assessment
The English judge and barrister, John Marrin QC (as he was then), stated in a paper for the Society of Construction Law in 2002:
“Since at least the 1980s, it has commonly been suggested that the correct approach to the matter of causation in determining contractors’ claims is to apply what is called the dominant cause approach. On this approach, the architect is required to choose between competing causes of delay according to which is dominant or predominant1.”
This is perhaps a common-sense approach in its purest sense. It is also arguably, reflective of its time. Prior to the mid-late 1990s, computer technology was such that detailed electronic analyses of delay were less common. As a result, a more practical approach may have been necessary.
As Pickavance observes, it was only with the arrival of the Pentium processor for the personal computer in the mid-1990 s that such analyses were possible by anyone other than those with large, powerful computer technology2.
Prior to the PC, requirements for processing power would render delay analysis almost impossible at any degree of scale. Developments in technology over the past 20 years or so have led to an explosion in the use of critical path methods of analysis for delay. Methods that previously would not have been available or at least not so easily possible.
However, it is also noted by Pickavance that this explosion in cheap technology has often led to:
“… Nothing more than drawing a pretty picture that was created without any thought to project scope and without any consideration for the logical dependencies between activities3.”
Should there be a more practical and commonsense approach to the assessment of delay, and particularly concurrent delay? Interestingly, there are firms who promote the contractual removal of disputes over concurrent delay.Has the very thing that allowed an increase in analysis, in part, caused some of the problems? The cheap and accessible tech might intrinsically be leading to disputes that are more complex and more difficult to resolve. The question then might be whether the disputes should, in fact, be easier to resolve? Should there be a more practical and common-sense approach to the assessment of delay, and particularly concurrent delay?
Marrin also sought to define concurrent delay in his paper. It is this definition which has held ever since:
“The expression ‘concurrent delay’ is used to denote a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency4.”
The history of concurrency in courts
Case law on the subject ranges in its conclusions. Some decisions suggest that the concept of concurrent delay is nonexistent or impossible to prove. Others have advocated an award on the basis of the ‘first to reach it’ as in Adyard Abu Dhabi v SD Marine Services (2011) EWHC 848. Yet others have promoted an approach on the basis of apportionment, for example, City Inn Ltd v Shepherd Construction Ltd (2003) ScotCS 146.
There have been ‘orthodox’ and other approaches to the analysis of concurrent delay. In early cases, it was suggested that concurrency should be simple to identify and deal with, in the rare occasion that it arises. However, as Pickavance notes:
“As a result of the various attempts of tribunals and courts to expand [a] simple compensation-related formula into ever more complicated time-related scenarios, that simple thesis has become more difficult to follow5.”
In the case of Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 Con LR 33 – the approach was that, if it’s permitted in the contract, then you get an entitlement to an extension of time. Or more clearly:
“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”.
More recently there have been attempts to contractually remove concurrency through contract drafting. In the case of North Midland Building Ltd v Cyden Homes Ltd (2018) EWCA Civ 1744, the approach was to assert that if there is employer and contractor delay that run concurrently, then you do not get an extension of time as the contractor.
Interestingly, there are firms who promote the contractual removal of disputes over concurrent delay. In researching this article, we have encountered at least one law firm stating that employers should ensure contracts are clear. They note the need to add contract clauses. The suggestion is that in the event of concurrent delay where employer and contractor coincide, the contractor will not receive an extension of time.
Claims for concurrency are almost inevitable, but is concurrency actually inevitable?
The longer a project runs and the more complex a project gets, is it more likely that at some point two delays will arise concurrently? Projects such as sports stadia, oil and gas plants, major infrastructure and tall buildings have many planned activities going on at once. It is difficult to anticipate a scenario where multiple elements are not delayed at the same time. Equally it is likely that on such a project, concurrent delay is inevitable. Projects are more likely to experience and suffer from extraneous issues the longer they run (or the longer they are delayed).
The Society of Construction Law (SCL) protocol
The SCL Protocol expressly deals with the question of concurrent delay. It sets out a definition and a suggested method for allocating responsibility. It is a well-known and well used non-binding authority drafted in the UK but identified in other jurisdictions where the SCL has presence (including Africa, India, Europe and The Americas).
The protocol proposes that, absent anything in the contract, the contractor should get an extension of time. The extension should be for the period of concurrent delay. But, it should not receive compensation unless the contractor can separate the additional costs caused by the employer delay from contractor delay.
We must be cognisant of the position of the protocol in respect of the contract and South African law. However, in the author’s experience of delay analysis in South Africa, the approach provided for by the protocol is generally a sound one.
Bad faith and examples
By way of example, experiencing labour and material shortages outside of the original period is often an ‘un-planned for’ risk that was not in the contemplation of the tendering party. The issue of visas for labour resources and/or commissioning engineers may expire when the construction period extends. This in turn may cause a new resource issue that may become concurrent and perhaps concurrent across many aspects of the project.
It would be unreasonable for a party to rely on a concurrency argument when it was aware of impending delays it intended to negate through such arguments. Of greater concern are delays caused by matters that one party had greater control and knowledge of. For example, consider the employer who advises the contractor that the design process is nearing completion and will be sufficiently advanced prior to the trade contract starting its works, but that state of advancement is not, in fact as advanced as suggested. The contractor may then have to ‘live with’ a design process which causes delay to its works. The employer (finding culpable issues) then may state this is a period of concurrent delay.
In what could have been a straight-forward correction to the programme and price by ensuring a design freeze, the contractor/ subcontractor may find itself ‘financing’ a period of time on the project.
It would be unreasonable for a party to rely on a concurrency argument when it was aware of impending delays it intended to negate through such arguments. Particularly if it planned those arguments with a party who found itself on a project for longer than planned through no fault of its own. That would not be good faith.
Does it exist and can good faith help?
In reality, it is almost impossible for actual concurrent delay to exist. Time, as another expert observed is ‘infinitely divisible’6.
So, at some point there will have been a time where one delay occurred before the other. Even if that is only by minutes or indeed hours. So true concurrent delay is therefore unlikely to ever exist. But that doesn’t stop people attempting to analyse it, and many hours of consultancy time being spent in that analysis.
All that remains then, is to take a sensible approach to tackling concurrency. The concept referred to in our article for the Chartered Institute of Arbitrators in Kenya discusses the nature of good faith7. If parties to a contract were to work together in that good faith, such issues could be dealt with amicably and without need for recourse to the contract or legal process.
Above all, as always with construction projects and disputes, the absolute need for good, accurate records is key to ensuring resolution of disputes. This is borne out in the advice of the SCL Protocol. If delays then arise, the accurate demonstration of the link between the cause and resulting effect will be critical. Detailed and often academic arguments over concurrency might well be avoided if correct contemporaneous records are kept on a project.
Damian James, Quantum and Delay Expert
1 John Marrin QC, Concurrent Delays (2002)
2 Pickavance, K. Delay & Disruption in Construction Contracts, 3rd ed (2005)
3 Pickavance, K. Delay & Disruption in Construction Contracts 4th ed (2010) p.339
4 Ibid
5 Pickavance, K. Delay & Disruption in Construction Contracts 4th ed (2010) p.1037
6 Gainsbury (2018)
7 CIArb, Kenya, Alternative Dispute Resolution, vol 111