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LAW AND REGULATION OF CONCURRENT DELAY IN

ENGLAND
JURISDICTION WITH DEVELOPED JURISPRUDENCE

Table of contents

As a general concept, concurrent delay is a well developed and understood theory. However the details of
1. Is concurrent delay a well developed and understood concept?
what it means and how it applies are the subject of considerable debate.

The most recent court judgment (North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744)
suggests that the definition of concurrent delay most likely to be accepted by tribunals is:

“a period of project overrun which is caused by two or more effective causes of delay which are of approxi-
mately equal causative potency”.

This judgment is a Court of Appeal decision and should therefore bind courts of first instance, arbitrators
and adjudicators.

2. Is there a generally understood and accepted definition of concurrent delay and
It should be noted that this definition differs from that adopted in the Society of Construction Law’s Delay
when it arises?
and Disruption Protocol (2nd Edition).

How the risk of a period of concurrent delay should be treated depends on the interpretation of the rele-
vant contract terms and their application to the facts in issue. There is also a body of case law that consid-
ers the issue and how it affects the parties’ rights and obligations in the context of the contracts and facts
3. How is the issue of concurrent delay treated?
applicable in each case. There is no relevant Act of Parliament.

As noted above, the treatment of concurrent delay ultimately depends on the interpretation of the rele-
vant contract terms and their application to the facts in issue.

As a result it cannot be assumed that the contractor will be entitled to an extension of time for any period
of concurrent delay (or indeed that it will not be entitled to one). There are cases that suggest that (absent
any contractual exclusion of entitlement) a contractor should generally be entitled to an extension of time
for concurrent delay, but these cases are first instance decisions only and there are also other judgments
that suggest (by virtue of taking a very narrow definition of concurrency) the contrary (some of these judg-
ments are referred to in the commentary on the Society of Construction Law’s Protocol scenario below).
As a result the comment in the Society of Construction Law’s Protocol that: “Where a Contractor Delay to
Completion occurs or has an effect concurrently with Employer Delay to Completion, the Contractor’s concur-
rent delay should not reduce any EOT due” cannot be taken as representing the position under English law.

In terms of any claim by the contractor for additional payment for periods of concurrent delay, again the
treatment of any such claim depends on the interpretation of the relevant contract terms and their appli-
cation to the facts in issue. Absent any specific contractual provision to the contrary however it is generally
thought that a contractor would not be able to recover additional costs attributable to the period of con-
current delay as it would not be able to show that “but for” the occurrence of the event that in principle
entitles it to additional payment it would not have incurred those costs. That is also the position adopted
4. Are there any general principles that apply to the treatment of concurrent delay?
in the Society of Construction Law’s Protocol.

In England, parties will appoint programming (schedule) experts/delay analysts as expert witnesses; each
such expert will have his/her preferred method of analysis out of a number of possible methods. The vari-
ous methods of analysis are outlined in the Society of Construction Law’s Protocol. If the relevant contract
specifies which method should be used, this should be adopted, but it is rare for a contract to specify this.
Otherwise, there is no authoritative guidance as to which method is correct. The suggestion in the Society
of Construction Law Protocol is that when the contractor’s entitlement to an extension of time is being re-
viewed at the time the works are being carried out it should be done so by way of “time impact analysis”
(one of the “prospective” methods of analysis). The Protocol suggests that when the review of the
contractor’s entitlement is carried out later (generally, after completion of the works) this may no longer be
appropriate. Commentary in Walter Lilly & Co Ltd v Mackay [2012] EWHC 1773 suggested that it should
make no difference whether the analysis was carried out on a prospective or retrospective basis, but more
recently the judge in Fluor v Shanghai Zhenhua Heavy Industry Co, Ltd [2018] EWHC 1 thought (obiter) that
the different methods would produce different results, and suggested that the correct approach when
evaluating an extension of time entitlement (as opposed to damages for breach of contract) was a
prospective approach. Other cases, however, suggest that a retrospective analysis is required for evaluat-
5. How is the question of evidence as to causes and periods of delay dealt with?
ing extension of time claims (see Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 (Comm)).
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A clearly drafted term that imposed the risk of any period of concurrent delay on either the employer or
the contractor would generally be given
Start effect.
your That was the situation in the North Midland case (referred
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6. Would a contract term which provides that one or other party will take the risk of
to above) where the Court of Appeal decided that a clause in a contract imposing the risk of concurrent
concurrent delay be effective in your jurisdiction?
delay on the contractor should be given effect.
Latest update
22 June 2020
7. The SCL Protocol scenario
Expertise
“An event that is at the Contractor’s risk under the contract (a “Contractor Risk Event”) will result in five weeks
REAL ESTATE
delay to completion, delaying the contract completion date from 21 January to 25 February. Independently
CONSTRUCTION & ENGINEERING
and a few weeks later, a variation is instructed on behalf of the Employer which, in the absence of the preced-
ing Contractor Risk Event, would result in delay to completion from 1 February to 14 February.”
Explore more
7.1 Is the Contractor entitled to an extension of time in respect of the variation? If
so, for how long? Expert Guides
Assuming that the contract contains an extension of time clause entitling the contractor to an extension of
AIFM pass­port­ing
time for variations and that it does not contain any provisions governing the treatment of concurrent delay
– the position in this situation under English law is currently unclear.

One line of cases suggests that if the Contractor Risk Event and the variation are of “approximately equal
causative potency” then the Contractor should be entitled to an extension of time for the delay caused by
the variation (see for example Walter Lilly & Co Ltd v Mackay [2012] EWHC 1773). On that basis the
UCITS pass­port­ing
Contractor would be entitled to an extension of time of 2 weeks (for the period 1 – 14 February).

Another line of cases takes a “first in time” approach which means that the event that occurs second is not
regarded as an effective cause of delay (because the works were already in delay and the second event did
not increase that delay) and does not entitle the Contractor to an extension of time (see for example
Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 and Saga Cruises ShowBDF Ltd
all v Fincantieri SPA [2016]
EWHC 1875; this is also the position espoused in the Society of Construction Law’s Protocol). On that basis
the Contractor would not be entitled to an extension of time.
Publications
Yet a third line of cases takes a more liberal approach and would allow an extension of time where the
In­ter­na­tion­al Dis­putes Di­gest -
Employer’s variation would have caused a delay to completion in the absence of or “but for” any
2022 Winter Edi­tion
Contractor Risk Events (see for example, De Beers v Atos Origin IT Services UK Ltd [2010] EWHC 3276 (TCC)).
This line of cases presently appears to be less prominent than the other two noted above, but there is as
yet no authoritative guidance from the English Court of Appeal as to which is correct.

One point which does appear to be reasonably settled on the English cases is that a partial extension of
War dam­age in Ukraine: all you
time apportioned across the two causes of delay is not permissible. This was the position reached by the
need to know to ob­tain com­pens­-
Scottish Court of Appeal (known as the Inner House of the Court of Session) in City Inn Ltd v Shepherd
a­tionconsistently rejected in the English cases.
Construction Ltd [2010] BLR 473, but has been
7.2 Assuming the Contractor is contractually entitled in principle to recover delay-
© CMS Legal 2022
related costs relating to the variation, for what period (if any) could it recover
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those delay-related costs?

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As noted above, absent any specific contractual provision to the contrary it is generally thought that a con-
tractor would not be able to recover additional costs attributable to the period of concurrent delay as it
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would not be able to show that “but for” the Fibra of
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a result the Contractor would not be entitled to
recover delay-related costs relating to the variation.

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