Concurrent delay: everything to play for

Aidan Steensma is Of Counsel for infrastructure, construction and energy disputes at CMS London

Concurrent delay is a favourite topic of construction lawyers, with a wide variety of views being held and a scarcity of authoritative guidance from the courts. A decision of the Technology and Construction Court (TCC) in October 2022 has adopted a much broader approach than other recent Commercial Court cases.

Concurrent delay: an overview

Concurrent-delay claims generally arise whenever claims for extension of time are met with an allegation that the contractor would have been unable to complete the works on time even if the event claimed for had not occurred due to its own delays or those for which it is contractually responsible.

In Scotland, the law permits responsibility for concurrent delay to be apportioned between the parties. Apportionment has been rejected in England and it is generally accepted that where concurrent delay exists, a contractor is entitled to a full extension of time but not additional cost. However, there is strong debate as to when concurrent delay will exist for the purpose of this rule. There are three broad schools of thought:

  • One traditionally popular view, sometimes referred to as the “consensus view” or dominant-cause approach, requires two delaying events to be of “equal causative potency”. A critical-path analysis will typically be used to eliminate delaying events that have not affected the critical path, but even two events that impact the critical path may not, on analysis, be shown to be of “equal causative potency”. The question is one of common sense in all circumstances.
  • A broader test has recently been advocated by some commentators, described as a “reverse ‘but for’ test”. This approach asks simply whether the delaying event for which an extension of time is claimed would have delayed completion in the absence of the delay event(s) that the contractor is responsible for. In such circumstances, the delaying event claimed for is an “effective cause” of delay and there is no need to ask whether it is of “equal causative potency” with any contractor-culpable delay events.
  • A narrower test focuses on the point in time at which delaying events occur. Where an existing event has caused delay to completion, subsequent delay events are treated as not being a cause of delay to completion at all unless, and to the extent that, they increase the delay already caused by the existing event. This is sometimes referred to as the “first in time” approach.

Support may be found to varying degrees for each of the above approaches in cases, but recent Commercial Court cases, as well as the second edition of the SCL Delay and Disruption Protocol, have favoured the first-in-time approach.

Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council

Blackburn Council appointed Thomas Barnes to build a large central bus station in Blackburn on the terms of an amended JCT Standard Building Contract. Large delays occurred on the project, for which Thomas Barnes claimed extensions of time. Blackburn ultimately terminated the contract for delay and Thomas Barnes brought TCC proceedings contesting the termination and seeking to establish its right to extensions of time, and loss and expense.

“The court’s decision will revitalise the debate over concurrent delay”

The primary delay event supporting Thomas Barnes’ extension-of-time claim was the deflection of certain steel supports that required investigation and remedial work. This issue prevented concrete topping from being poured, which in turn prevented the construction of a “hub” that was to provide office space. The construction of the hub was required before internal finishes could be commenced, which was the last activity on the programme.

The council accepted that the deflection of the steel supports was not Thomas Barnes’ responsibility. However, while the deflection issue was ongoing, Thomas Barnes had suffered delays to the roof works. Completion of the roof works to provide a watertight structure was required before the hub internal finishes could commence. However, the roof delays were resolved prior to the construction of the hub and did not add any independent delay to that caused by the deflection issue.

In these circumstances, the court found that the roof delays were concurrent with the deflection delays, despite the former being subsumed by the later. In the court’s view, it was not enough for Thomas Barnes to say that “the works to the roof coverings were irrelevant from a delay perspective because the specification and execution of the remedial works to the hub structural steelwork were continuing both before and after that period of delay”. The first-in-time approach was therefore rejected.

The council had sought to avoid this finding by relying on a prospective delay analysis to argue that during much of the roof delays, the concrete topping and hub works were still in float. It therefore argued that the critical path first ran through the roof delays and then switched to the hub works once the float had been used up. The court also rejected this approach, considering it to be too theoretical to meet the general point that both delays were causing delay to completion.

The court’s decision will revitalise the debate over concurrent delay, which some had suggested was coming to rest in favour of the “first-in-time” approach. On the faith of this decision at least, a number of different approaches remain open.

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