The concept of Concurrent Delay in construction contracts.

Concurrent delay refers to a period of project overrun, resulting from two or more causes of delay which are of approximately equal causative potency and are felt at the same time [1].

In the case of concurrent delay, both parties claim delay. Typically, the contractor will claim an extension of time and damages for delay in respect of an employer risk event. Whilst the employer opposes this entitlement to liquidated damages based on a contractor risk event.

The familiar rule is the “prevention principle “. An employer cannot claim liquidated damages for late completion if the employer has by act or omission prevented the contractor from completing on time, accordingly for this reason most construction contracts include an extension of time mechanism.

The challenge Concurrent delay presents in the application of a contractual extension of time is whether the contractor is entitled to an extension of time where both the employer and contractor have caused the period of delay in question?

In the case of Henry Boot Construction Ltd v Malmaison Hotel (Manchester) Ltd[2], it was held that in cases of concurrent delay, the contractor is permitted an extension of time and therefore a defence to the employer’s claim for liquidated damages, but the contractor is not entitled to seek time-related costs. The court went on to hold that it was a question of fact whether a relevant event had caused or was likely to cause delay to the works beyond the completion date. Creating the curious position that the cause of delay is treated as a question of fact, which usually requires satisfaction of the “but for” test. The rudimentary common law test for factual causation is the “but for” test. However, in the case of concurrent delay, both competing causes of delay cannot pass the “but for” test because the delay would have occurred anyway even in the absence of the other cause.

In Saga Cruises BDF Ltd v Fincantieri Spa[3], Fincantieri’s defence claimed the completion date had been delayed by two concurrent events, one the employer’s responsibility and the other the contractor’s responsibility, therefore no liability for liquidated damages should arise in respect of that period notwithstanding the concurrent effect of the contractor risk event.

The act relied upon must actually prevent the contractor from carrying out the works within the contract period, or, in other words, must cause some delay. Concurrent delay is defined as: “…a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency.”[4] The court highlighted the distinction between an employer’s risk event which actually causes delay to completion and a situation where an employer culpable delay makes no difference to the completion date due to the fact that works have already been delayed by a contractor risk event. Therefore, unless there is a concurrency actually affecting the scheduled completion date, the contractor cannot claim the benefit of it.

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