CONCURRENCY IN DELAY CLAIMS

INTRODUCTION - WHAT DOES IT MEAN AND WHY DOES IT MATTER?

Concurrency and concurrent delay are terms that are often used by the
construction industry rather loosely and without sufficient thought as to what
those terms really mean, both legally and practically.
This paper will try to provide a short route map through what can often be a
minefield for contractors, employers and certifiers alike.
I shall start by trying to define the terms themselves. There are a number of views
on what concurrency means and how it should be construed legally. We will then
look at how delays on construction projects are assessed and what that means for
concurrency.
Then there are two Scottish cases on apportionment to consider, as those
decisions have gained significant influence in English construction law.
I will seek to explain why concurrency matters at all by dealing with the important
distinction between addressing concurrent delays in extension of time claims and
in loss and expense claims.
What is concurrency?
This is a subject often vexed by confusion and uncertainty, helped in no small part
by the judgments dealing with this difficult area that have fed an ongoing debate
about the meaning of concurrency for more than a decade.
The focus of this debate has often been on whether a true or real concurrent
delay can only occur where there are two events occurring at the same time and
which delay completion of the whole of the works.
The Society of Construction Law (SCL) first published its influential Delay and
Disruption Protocol in 2002, in an attempt to guide parties through common
issues that arise on construction projects and, hopefully, help them avoid
unnecessary disputes.
That SCL Protocol refers to true concurrent delay which it defines as the
occurrence of two or more delay events at the same time, one an Employer Risk
Event the other a Contractor Risk Event, and the effects of which are felt at the
same time.

Often, however, this is too narrow a description for what actually occurs on site.
There are many cases, not limited to construction cases and of course including
insurance cases, where courts have had to consider loss which has been caused by
two events which occurred at different times. Those causes have also been classed
as concurrent.
The SCL protocol does recognises this very real situation by noting that concurrent
delay is often used to describe the situation where two or more delay events
arise at different times, but the effects of them are felt (in whole or in part) at
the same time. It defines this situation as the concurrent effect of sequential
delay events, which hardly provides clarity to the debate over what concurrency
actually means.
Looking at its most basic characteristics, the word concurrent is defined by the
Shorter Oxford Dictionary to mean:
1. Occurring or operating simultaneously or side by side.
2. Acting in conjunction; co-operating (Emphasis added)
Outside the area of concurrent delay in construction cases, the expression
concurrent cause has always been concerned with events which co-operate to
cause a particular event to occur, rather than events which occur
contemporaneously.
We could continue our search for what concurrency means but for the purposes of
this seminar a concurrent delay is one which arises during a single period, caused
by more than one event. That is, it is the time that the delay is suffered, and not
the time that the event occurs, that is the key factor in determining concurrency.
This will become clearer when we consider why concurrency matters.
How is delay assessed?
Firstly, let us remind ourselves of how delay is assessed once it arises on a project.
The generally accepted method of proving whether there has been a delay to
completion as a result of a delay to an activity is the critical path method.
Typically, on at least most projects of significance, a critical path program will be
prepared by the contractor (and sometimes that programme is even agreed with
the architect or certifier!!).
As most of you will be keenly aware, the critical path method is the process of
deducing the critical activities in a programme by tracing the logical sequence of
tasks that directly affect the project completion date. This is usually depicted in a
bar chart that is generated electronically and there is good authority under English
law to say that a computer-based critical path is required - for example, see the

2002 case of Balfour Beatty v London Borough of Lambeth1, in which Judge

Humphrey Lloyd said:
By now one would have thought that it was well understood that, on a contract
of this kind, in order to attack, on the facts, ... a certificate for non-completion
...or an extension of time ..., the foundation must be the original programme ...
and its success will similarly depend on the soundness of its revisions on the
occurrence of every event, so as to be able to provide a satisfactory and
convincing demonstration of cause and effect. A valid critical path (or paths) has
to be established both initially and at every later material point since it (or they)
will almost certainty change. Some means has also to be established for
demonstrating the effect of concurrent or parallel delays or other matters for
which the employer will not be responsible under the contract.
While His Honour Judge Lloyd points out that the critical path method is what the
courts will undoubtedly expect to see when called on to untangle disputed delay
and disruption claims, that expectation is not always met, as the following cases
will show.
Cases on apportionment
There are two relatively recent Scottish decisions that have brought a new
dimension to the debate on how to deal with concurrent delays when assessing
extensions of time and prolongation costs.
Perhaps curiously, the influence of Scottish decisions upon the English courts in
construction cases over the past 5-10 years has steadily increased. This appears
primarily to be because comparatively few points of construction law end up
before the English courts, given that most disputes are these days resolved by
adjudication. Often these Scottish cases are referred to by parties in English
adjudications and are relied on and applied in adjudication decisions and, thereby,
become a de facto part of our construction jurisprudence.
Turning to the first case, City Inn v Shepherd Construction,2 the basic facts were
that the works were completed over 11 weeks late, against which the architect
awarded an extension of time of only two weeks. This satisfied neither the
employer nor contractor. The employer argued that it was entitled to levy more
than 9 weeks of liquidated damages at 30,000 per week. The contractor
maintained it was entitled to the full extension of time, negating the liquidated
damages claim, and further argued that it was entitled to loss and expense that
flowing from an EOT of 11,519 per week (which it pleaded as a global
prolongation claim).

Balfour Beatty Construction Ltd v The Mayor and Burgesses of the London Borough of
Lambeth [2002] EWHC 597(TCC)
2
City Inn Ltd v Shepherd Construction Ltd [2007] CSOH 190

In this context a global prolongation claim is where the contractor quantifies the
loss which it says flows from any delay by taking the weekly rate for Preliminaries
set out in the Contract Bill of Quantities (e.g. site overheads, such as general
attendances on subcontractors for supervision and management of the works,
provision of electricity, phones etc) and multiplying it by the number of weeks of
delay claimed. Such was the case put by Shepherd Construction to City Inn.
The competing or concurrent causes of delay claimed by each side were:

For the contractor - late variations or instructions issued by the architect.

For the employer - late and/or defective work to two areas of work.

The parties respective experts concluded that it was not possible to do a critical
path analysis of the delay because there was not an appropriate initial programme
accurately showing how the contractor intended to construct the works. His
Honour Judge Lloyd would not have been pleased.
What Lord Drummond Young in the City Inn case was accordingly forced to do was
determine to what extent the gross delay to the whole project had been caused by
the delays of the owner and the contractor without the benefit of the conventional
tools for analysis.
Without the benefit of any critical path analysis, the judge concluded that all
delays which were identified by the parties were concurrent causes of the gross
delay. The judge then apportioned the gross delay between the owner and the
contractor by reference to common sense and a consideration of what was fair
and reasonable.
City Inn is an unusual construction case, not simply because it was lacking the usual
critical path analysis but, more importantly, because Lord Drummond Young
carried out an apportionment exercise in an area of the law that normally refuses
to do so. In fact, it was likely that apportionment was only possible because of the
absence of a verifiable critical path.
This reluctance for apportionment might seem out of place for those coming from
an insurance background, where tort law is reasonably clear on concurrent causes
of loss. As we know, if there are concurrent causes of loss in tort, neither of which
is the responsibility of the Claimant, they can recover in full if they establish that
the cause for which the Defendant is liable caused or materially contributed to his
loss.3
Tort recognises there can be a contribution from two or more defendants or from
a defendant and one or more third parties. It also recognises that if the Claimants

Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, HL

loss was partly their own fault, their damages may be reduced for contributory
negligence. So what is the problem in contract?
The position in contract, particularly in the construction context, generally
demonstrates a reluctance to undertake apportionment as in City Inn because of
the heavy factual analysis that necessarily underlies it. Instead, the English courts
have preferred to rely on the balance of risk reached by the parties when
concluding a construction contract, given that it would normally provide for the
levying of liquidated damages, extensions of time, and the recovery of loss and
expense.
The second important case decided in Scotland dealing with concurrency is Laing
Management (Scotland) Ltd v John Doyle Construction Ltd*. In that case, Laing
claimed a 22-week extension of time and around 4.8 million in loss and expense
allegedly caused by delay and disruption to their progress of the works. John Doyle
claimed that the contractors claim was global and that, consequently, if any of
the claims could be shown not to have been caused by the employer, the whole
claim must fail.
The court held that, provided a contractor is able to establish that all of the
events on which he relies are the responsibility of the employer in law (on the
balance of probabilities), it is not necessary for him to prove causal links between
individual events and particular heads of loss.
Further, in John Doyle it was held that, where the loss was caused both by matters
for which the employer is responsible and also by matters for which he is not
responsible, then for the claim to succeed the contractor must establish that those
events for which the employer is responsible are the proximate or dominant
cause of the loss. Both of those terms bear some similarity to the material
cause of loss used in tort.
The proximate or dominant cause established by proven fact and commonsense
analysis will be treated as the operative cause and the person responsible for it
will be responsible for the whole loss.
In the event that the contractor cannot identify the dominant cause of the loss, it
may be possible to apportion the loss between the causes for which the employer
is responsible and other causes. In such a case, it is obviously necessary that the
event or events for which the employer is responsible should be a material cause
of the loss. Provided that condition is met, the apportionment of loss between the
different causes is possible in an appropriate case.
This line of reasoning has been followed in the English courts where, in Maersk Oil
UK Ltd v Dresser-Rand UK Ltd, His Honour Judge Wilcox stated if an
apportionment based on the evidence is possible, albeit difficult, it would be

[2004] BLR 295

manifestly unjust to deny a remedy, where there are plain contractual breaches
by the defendant/employer.5
So the Scottish courts have shown a propensity to consider apportionment of losses
flowing from concurrent causes of delay where the English courts have
traditionally refused to do in most cases. What does this mean for concurrency in
construction disputes generally?
Why does concurrency matter?
The short answer is that concurrency matters because different delays have
different consequences, both for employers and for contractors.
Delays, whether they are concurrent or not, can generally be divided into three
categories:
1

Compensable delays - events that entitle the contractor to an extension of

time and to loss and expense for costs flowing from that event.

Excusable delays - events that entitle the contractor to an extension of

time but where the contractor bears the risk of any additional costs that
flow from that event.

Culpable delays - events that do not entitle the contractor to either time
or money.

Distinctions between concurrent delays for claims for extensions of time and
for loss and expense
The key to understanding concurrent delay and its application to construction
disputes is the recognition that the grounds for extensions of time are different to
those that apply to loss and expense. This is often forgotten by employers and
contractors alike, even though standard forms such as those issued by JCT and ICE
deal with these two issues distinctly differently.
Concurrent delay and extensions of time
Extension of time provisions in construction contracts are not simply included to
protect the contractor. Another key purpose is obviously to preserve the
employers entitlement to liquidated damages.
Where there are concurrent delays, one of which entitles the contractor to an
extension of time and another for which it is culpable, then the employers
default can be said to be causative of the delay. To say otherwise would be to
deprive the
5

[2007] EWHC 752 (TCC). See also London Underground v Citylink

Telecommunications Ltd [2007] EWHC 1749 (TCC), for further support for the
decision in John Doyle.
6

contractor of an extension of time and, therefore, allow the employer to levy

liquidated damages when the employer itself is in default.
This is a longstanding position reflected in Peak Construction v McKinneyb and
accords with the decision of Dyson J (as he was then) in Henry Boot v Matmaison7.
In Malmaison, Dyson J accepted the parties agreed position 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.
A similar approach was adopted in Royal Brompton Hospital v Hammona*, where
His Honour Judge Seymour found that if the contractor was delayed in completing
the works by matters for which it bore the contractual risk and by relevant events
... it would be entitled to extensions of time by reason of the occurrence of the
relevant events notwithstanding its own default.
The reason for this overarching principle of allowing a contractor an extension of
time where there are concurrent causes of delay, even where one of those causes
is the fault of the contractor, is because the architect or certifier (on behalf of the
employer) is required to grant such extension of time as he estimates to be fair
and reasonable.
The fact this discretion exists at all presupposes that it is open to the architect to
recognise that more than one competing cause of delay may arise. In such cases,
any refusal to grant an extension of time on the basis of culpability on behalf of
the contractor where the employer was also in breach, would create the unfair
and unreasonable result of the employer receiving the benefit of liquidated
damages where it was in default.
Concurrent delay and loss and expense
The position on loss and expense, however, is very different and ties in with the
Scottish cases we covered earlier. There is no overarching principle when it comes
to loss and expense claims - the contractual events which give rise to recovery of
those losses in the standard forms are generally narrower than those that give rise
to an extension of time.
As highlighted by the Scottish decisions of City Inn and John Doyle, loss and
expense claims based on concurrent delays give rise to difficult questions of
causation. Inevitably, this will require an attempt to unravel forensically the
factual position as far as possible, to identify the individual events, and to
determine who is responsible for each and the costs that reasonably flow from
each event.
6

Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd 1 BLR 111

Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 17
Con LR 32
8
Royal Brompton Hospital NHS Trust v Hammond (No 7) [2001] 76 Con LR 148
7

Until the decision in John Doyle, construction cases dealing with loss and expense
had tended to favour a winner takes all approach, where a claim based on
concurrent causes of delay either succeeded or failed as a whole on the back of a
dominant cause for the delay.
In John Doyle, the court recognised that it is sometimes more appropriate to
attempt an apportionment of the losses between the competing causes. As such,
where an item of loss and expense results from concurrent causes, provided the
events for which the employer is responsible are a material cause of the loss, an
apportionment of the loss can be carried out in appropriate cases.
The court made it clear that unless there are special reasons to the contrary,
responsibility during that period should probably be divided on an equal basis, at
least where the concurrent cause is not the contractors responsibility. Where it is
his responsibility, however, it may be appropriate to deny him any recovery for
the period of delay during which he is in default.
So what does that mean in practice? Looking back to the categories of concurrent
delay listed earlier, if a loss and expense claim is made by a contractor in
circumstances where there is:

A combination of compensable delay with excusable delay, an

apportionment exercise should be carried out based on the relative
significance of each event.

A combination of compensable delay with culpable delay, apportionment

is unlikely to be appropriate and the contractor is only likely to recover his
loss and expense to the extent he can show that the compensable delay
was the dominant cause of the delay.

Conclusions
So let us recap on what we have ran through today:

Concurrent delays are those which arise during a single period, caused by
more than one event. It is the time that the delay is suffered, and not the
time that the event occurs, that is the key factor in determining
concurrency.

Delays are usually and best assessed by a critical path analysis and
contractor should be careful to update their programme during the
progress of the works to maximise recovery.

Concurrency matters because different delays have different

consequences for contractors and employers and because extensions of
time and loss and expense claims are dealt with very differently.

Contractors will be generally entitled to an extension of time where there

are concurrent delays, even if one of those delays is due to his breach.

The Scottish City Inn and John Doyle cases have opened the door to
apportionment where there are concurrent delays but only for loss and
expense claims, not for extensions of time claims.

Mark Tiggeman
Partner
for Kennedys
&
David Toscano
Senior Assistant Solicitor
for Kennedys

This talk was first given by partner Mark Tiggeman at Kennedys Fenchurch Avenue
office on 14 July 2010.

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