A case about two ships that were not ready for sea trials in time prompted a review of the prevention principle and the law on concurrent delay. In Adyard Abu Dhabi v SDMS, Mr Justice Hamblen provided a reminder that where an employer prevents a contractor from completing by the contractual completion date (for example, by instructing a variation) the contractor is no longer bound by the strict contract time limits unless the contract has an extension of time clause for the relevant event (as the judge found it did in Adyard). In that case, the contractor must complete by the revised date.

The judge also revisited the debate on delay caused by concurrent causes, one of which is a relevant event, and the Scottish judgment in City Inn v Shepherd. He said that if Lord Carloway, in his dissenting judgment, was suggesting that it is unnecessary to show that the relevant event is an operative cause of delay, it does not reflect English law. Under JCT and similar forms, it must be established that the relevant event is at least a concurrent cause of actual delay. The judge also rejected Lord Osborne’s idea of apportioning delay between the relevant event and contractor delay, where neither was the dominant cause. The English law approach would be to recognise that the contractor is entitled to an extension of time, not an apportionment.

Dhabi v Sd Marine Services [2011] EWHC 848 (Comm)