"Time is money" is a settled statement in the construction industry, which drives and motivates every person engaged in an industry. The financial damages caused by project delays are generally substantial and ascertaining apposite legal remedy to effectively compensate for delays caused in projects is a vital aspect. In the recent years, there have been frequent debates in the construction industry with regard to the issues and problems involved in the concurrent delays.The issue involved in such delay is to determine the contractor’s entitlement to extension of time as well as loss suffered from such delay caused by the owner default; and the owner’s recovery of its actual delay or damages where the contractor fails to complete its given work within stipulated period, due to the contractor’s responsible delay that is concurrent to the owner caused delay. Till date there is no settled legal principle to resolve the problems involved in concurrent delays due to the consideration of interaction of many factors involved in different projects. Hence, the aim of this paper is to provide a definition and an in-depth study of the concept of concurrent delay through various case laws and also cover the aspects related to concurrent delays disputes.
The Oxford dictionary defines the word ‘concurrent’ as “occurring or operating simultaneously or side by side, or acting in conjunction.” If the owner caused delay and contractor caused delay, affect the same activity or different activities on parallel activity paths which are equally critical, and as such the owner caused delay and contractor caused delay would each have delayed the completion of the project, the delays are said to be concurrent.2 Where there is no definite or universally accepted definition of the concurrent delay but the term ‘concurrent delay’ is usually understood to describe circumstances when different causes of delay overlap during a period of time. The Society of Construction Law, U.K., published its first influential Delay & Disruption Protocol in 2002 in order to guide parties through common issues or problems involved in a construction projects by which they can resolve issues and avoid disputes. The SCL Protocol, 2002 defines “true concurrent delays” as “the occurrence of two or more delays 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.”
A very narrow definition was suggested by Judge Seymour in the case of Royal Brompton Hospital NHS Trust v Frederick A Hammond & Ors3 where concurrent delay was defined as “Two or more delay events occurring within the same time period,each independently affecting the Completion Date.”
In the case of City Inn v. Shepherd Construction, Lord Osborne4 concurrent delay was defined as “delay events may be described as being concurrent if they occur in time in a way in which they have common features. Alternatively, events might be said to be concurrent only in the sense that for some part of their duration they overlapped in time. Yet again, events might to be said concurrent if they possessed a common starting point or common end point. It might also be possible to describe events as concurrent that they possessed a causative influence upon some subsequent event, even though they did not overlap in time.”
TYPES OF DELAYS
Delay can be categorized under following two heads:
- Excusable delay- where the claimant is entitled to time extension or compensation, or both under the terms of contract. It is further divided into compensable or non compensable delays. When an excusable delay is compensable, a party can claim time extension as well as compensation for delay caused, and where the excusable delay is non compensable, in such case the party can only claim for time extension but not compensation.
- Non-excusable delay- where a party bears the risk of cost consequences including the liability to pay damages for itself but possibly for the other parties as well.5
Delay can be critical and non critical delays. Critical delay is event which causes the delay to the completion of the work project within stipulated period, whereas non-critical delays affect the work progress but do not cause delay to overall the completion of the project.
Case Laws in respect of concurrent delays and extension of time dealing with the general principle and facts of delays
Claims in concurrent delays are argued as both a sword and shield in fighting delay claims. There have been many cases which have covered the aspects of concurrency, apportionment of delays and extension of time which are as follow:
Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited6
In the instant case, Henry Boot contracted with Malmaison under a JCT Standard Form of Building Contract 1980 for the construction of a hotel in Piccadilly, Manchester. The contractor claimed an extension of time as a result of delay said to have been caused by variations and late information.The employer argued that the alleged variations did not cause any delay because they were not on the critical path and that the true cause of the delay was other maters which were contractor-risk events. The contractor contended that the matters pleaded by the employer are not within the jurisdiction of the arbitrator. Dyson J. rejected the argument of the owner and held that:
“It is agreed that if there are two concurrent causes of delay, one of which is a relevant and the other is not, then the contractor is entitled to an extension of time for the period of delay caused by the relevant event notwithstanding the concurrent effect of the other event. Thus, to take a simple example, if no work is possible on site for a week not only because of exceptionally inclement weather i.e. a relevant event but also because the contractor has a shortage of labor i.e. not a relevant event and if the failure to work during that week is likely to delay the works beyond the completion date by one week, then if it considers it fair and reasonable to do so, the architect is required to grant an extension of time of one week. He cannot refuse to do so on the ground that the delay would have occurred in any event by reason of the shortage of labor.”
SMITH V. THE UNITED STATES7
The government terminated a supply contract for failure to deliver in accordance with the terms of the contract. The contractor contended that its failure to perform was the result of delay and disruption caused by the government. However, the Court found that the contractor had made no attempt to recognize and apportion the amount of delay, for which it was responsible. It was held that:
“A contractor may not collect damages from the government due to delay where that contractor was itself in a state of concurrent delay. Generally, courts will deny recovery where the delays are ‘concurrent or intertwined’. Even where both parties are responsible for delay, a contractor may not recover unless it is able to apportion the delay and expense attributable to each party.”
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd.8
In the instant case, Jackson J. laid down the following propositions:
- “Actions by the employer which are perfectly legitimate under a construction contract may still be characterized as prevention, if those actions cause delay beyond the contractual completion date.
- Acts of prevention by an employer do not set time at large, if the contract provides for extension of time in respect of those events.
- In so far as the extension of time clause is ambiguous, it should be construed in favor of the contractor.”
To conclude the discussion on the concurrent delay in the construction work, it can be said that the issues and problems involved in concurrent delays is complicated and difficult one. Generally, claims in concurrent delay are contended as both a sword and a shield in order to claim damages or extension of time or, both. But the viability and success of claims or defense availed always depend on the facts, evidences and terms of the contract of each and every case. Inference can be drawn from the judicial pronouncements which are helpful in ascertaining and guiding in the decision of claims.