August, 2008 | Posted in Resources

The Courts Approach to Concurrent Delay

Think you know about delay analysis? Think you know about concurrency? Think again!

The Society of Construction Law’s Delay and Disruption Protocol defines concurrency as “True concurrent delay is 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. The term ‘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. To avoid confusion, this is more correctly termed the ‘concurrent effect’ of sequential delay events” Any wiser? Read on.

In order to have a thorough grasp on concurrency and thus to see whether a Contractor is entitled to an extension of time regardless of there being events for which the Contractor is culpable for, three cases must be examined in sequence in order to apply the principle of concurrency:

• Henry Boot Construction (UK) Ltd –v– Malmaison Hotel (Manchester) Limited [1999] 70 Con LR 32 (“Henry Boot”).
• The Royal Brompton Hospital NHS Trust –v– Hammond & Others (No. 7) [2000] 76 Con LR (“Royal Brompton”).
• City Inn Limited –v– Shepherd Construction Limited [2007] CSOH 190 (“City Inn”).

The term ‘concurrency’ is generic as there are connotations like for example, concurrency of causes and concurrency of events. However, for there to be concurrent delays in the sense that one event is a Relevant Event and the other is not, both events must necessarily be shown to be on the critical path of the programme.

The Henry Boot judgement refers to where 2 events, one being a Relevant Event and the other being a Contractor culpability, are concurrent in the respective causes. In that case, Mr Justice Dyson provides a simple example (paragraph 13), whereby both delaying events (one being a Relevant Event and the other not), starting and ending simultaneously, but both are necessarily on the critical path of the programme, which by definition would be likely to affect the date for completion. This is known as true concurrency.

Where a Relevant Event occurs after a Contractor Risk Event but runs concurrently on the critical path, this is referred to as net concurrency. But for either true or net concurrency to occur, the events must be shown to be on the critical path of the programme. Paragraph 32 of Royal Brompton, His Honour Judge Seymour QC stated: “…In order to make an assessment of whether a particular occurrence has affected the ultimate completion of the work, rather than just a particular operation it is desirable to consider what operations, at the time the event with one is concerned happens, are critical to the forward progress of the work as a whole.” In other words, an event complained of must be shown to have been on the critical path as opposed to one that is merely concurrent with the critical path. If an event is not on the critical path, it cannot affect completion and hence there is no entitlement to time.

Applying the principle of Henry Boot to concurrency therefore, where there are two concurrency of causes, one being a Relevant Event and the other being a Contractor culpability, and the Relevant Event is likely to delay the Works beyond the Completion Date, then providing the Architect / Contract Administrator considers it fair and reasonable to do so, an extension of time should be granted.

Following on from Henry Boot, Judge Seymour QC at paragraph 31 of his judgement in Royal Brompton provided a further explanation of what is meant by events operating concurrently. In that judgement, he considered that Mr Justice Dyson in Henry Boot had only been concerned with true concurrency as opposed to a where a Relevant Event occurred post an event that the Contractor was culpable for and hence, the Relevant Event had no effect upon the Completion Date. Judge Seymour QC concluded that where a Relevant Event occurred post an event that the Contractor was culpable for, the Contractor would not be entitled to an extension of time.

In City Inn, the Court had difficulty in agreeing with the conclusion of Judge Seymour QC and held that even where a Relevant Event occurred post an event that the Contractor was culpable for, this should not bar the Contractor from being entitled to an extension of time, if it was fair and reasonable to do so.

However, the decision in City Inn does not relieve the Contractor from the burden of proving that the event was a Relevant Event and was on the critical path of the programme as opposed to being merely an operational activity which happened to be concurrent with the critical path. The difficulty that City Inn found in the distinction of concurrency as laid out in Royal Brompton was that where a Relevant Event occurred after the date of a Contractor culpability, it would be treated differently to that of a Relevant Event that had occurred simultaneously to a Contractor culpability, with no entitlement to an extension of time.

In summary therefore, and in the context of entitlement to an extension of time:

• Concurrency of an event, whether a Relevant Event or Contractor culpability, must necessarily be shown to be on the programmes critical path, the completion of the Works of which is likely to be delayed thereby beyond the Completion Date.
• A Relevant Event can occur either simultaneously or post of a Contractor culpable event, both of which fall to be considered for an extension of time providing the event is proved on balance to be on the critical path.

© Michael Gerard Consulting Limited
August 2008