Construction Clinic 23

Concurrent Delay
Presented by
Paul Gibbons
CONCURRENT DELAY

“A Period of project overrun which is caused by two or more effective causes of delay
which are of approximately equal causative potency”

Concurrent Delay by John Marrin QC (2002), 18 Const LJ No. 6 436.

• True concurrency rare.

• However opposing expert will nearly always raise alternative causes of delay to negate
and cast doubt over the EOT / L&E entitlement.

• Complicated by the SCL Protocol providing two alternative views on concurrency (see
para 10.7 to 10.10).
THE ORTHODOX APPROACH TO CONCURRENCY

• Malmaison, etc:

Two concurrent delays 1 week EOT due to

Relevant Event – Exceptionally the Contractor (5
5 working day
Inclement Weather concurrent
working days)
Contractor Delay – Shortage of Labour delay
THE ALTERNATIVE (NEW) APPROACH

• Royal Brompton, Adyard, Jerram Falkus, Saga Cruises:

Contractor Delay – Contractor

10 day
Shortage of Labour contractor delay
Culpable
causing 10 days delay delay
THE ALTERNATIVE (NEW) APPROACH
Relevant Event–
Variation to Steelwork
• Royal Brompton, Adyard, Jerram Falkus, Saga Cruises: occurs slightly later but
equally delaying
No Concurrent delay –
The completion date is
not delayed any further
than already delayed

10 day delay remains

Relevant Event– Concurrent delay – The

Variation to Steelwork completion date is
10 day
extends beyond the delayed further than that contractor
Contractor Delay already delayed delay
5 day employer delay
CONCURRENT DELAY - SUMMARY

• Delaying act must affect the critical path.

• Delaying act must cause actual delay to the progress of the works.

• Delaying act must prevent contractor from achieving an earlier completion date. If
earlier completion date would not have been met (due to contractor delay), then no
concurrency exists.

• First event problem – Will new approach prevent parties from raising issues, whilst awaiting
the other side’s delay to materialise?

• Concurrency argument often won on the factual evidence rather than from the delay analysis
itself.

• Pragmatic Approach is required

QUESTIONS

QUESTIONS?
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