Concurrency - What does it mean?
Hudson’s Building and Engineering Contracts (10th Edition)., 1 st Supplement - refers to this problem as follows:
“First, different causes of delay may overlap, and this will be intellectually troublesome if one is an event justifying an extension and one not; e.g. information or access may not be available, but due to culpable delay or an event not justifying an extension, the contractor would not have been able to take advantage of them if they had been” (at p. 639)
A concurrent delay is therefore a delay to completion where at least one of the causes of the events which cause delay is at the contractor’s risk. Whereas a parallel delay is a delay to completion involving at least two events neither of which is at the risk of the contractor.
Which creates a bit of a dilemma - Can we agree at the time of a claim event what is the critical path? Especially, if the critical path has changed due to a previous contractor delay, is the employer still culpable for his delay?
Hudson’s Building and Engineering Contracts (10th Edition)., 1 st Supplement - refers to this problem as follows:
“First, different causes of delay may overlap, and this will be intellectually troublesome if one is an event justifying an extension and one not; e.g. information or access may not be available, but due to culpable delay or an event not justifying an extension, the contractor would not have been able to take advantage of them if they had been” (at p. 639)
A concurrent delay is therefore a delay to completion where at least one of the causes of the events which cause delay is at the contractor’s risk. Whereas a parallel delay is a delay to completion involving at least two events neither of which is at the risk of the contractor.
Which creates a bit of a dilemma - Can we agree at the time of a claim event what is the critical path? Especially, if the critical path has changed due to a previous contractor delay, is the employer still culpable for his delay?
eating proposed four solutions to apportion the loss:
SOCIETY OF CONSTRUCTION LAW DELAY AND DISRUPTION PROTOCOL:
1.4.4 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. True concurrent delay will be a rare occurrence.
What happens if the Contractor is prevented from completing on time, there is a remedy in the contract for the Employer’s default but the Contractor is time barred from relying on the remedy? (Refer FIDIC Clause 8.6)
Dominant Cause: Problems
The Malmaison approach
The approach to concurrent delay which is now commonly referred to as ‘the Malmaison approach’ was summarised by Mr Justice Dyson (as he then was) in the Malmaison case. The passage in question reflected an agreement between counsel appearing before him.
apportioning both time and loss. Wording which clearly prescribes apportionment of either time or money is noticeable by it’s absence in our contracts. Difficulty with the apportionment approach concerns the prevention principle.
In City Inn Lord Drummond Young said:
‘I agree that it may be possible to show that either a relevant event or a contractor’s risk event is the dominant cause of that delay. A similar principle was recognised in Doyle, at paragraph 15 of the opinion of the court; the principle is derived from the older case of Leyland Shipping Company Ltd v Norwich Union Fire Insurance Society Ltd [1918] AC 350’.
Caution: This should not be read as an unequivocal support for the dominant cause regard has to be paid to the facts.
Note: However, the dominant cause approach has received support in recent years from the decision at first instance in City Inn.
- The tortious solution
- The burden of proof approach
- The Devlin approach: (See: Heskle v. Continental Express Ltd [1950] 1 All E.R. 1033 at p. 1048 per Devlin J)
- The dominant cause approach: (Ref Gallo Ltd v Bright Graham Murray [1994] 1 W.L.R 1360 (C.A.))
SOCIETY OF CONSTRUCTION LAW DELAY AND DISRUPTION PROTOCOL:
1.4.4 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. True concurrent delay will be a rare occurrence.
What happens if the Contractor is prevented from completing on time, there is a remedy in the contract for the Employer’s default but the Contractor is time barred from relying on the remedy? (Refer FIDIC Clause 8.6)
Dominant Cause: Problems
- How to decide which delay is dominant
- Calls for relaxation of the “but for” test
- Conflicts with prevention principle
The Malmaison approach
The approach to concurrent delay which is now commonly referred to as ‘the Malmaison approach’ was summarised by Mr Justice Dyson (as he then was) in the Malmaison case. The passage in question reflected an agreement between counsel appearing before him.
- Avoids prevention principle issues
- Relaxation of But For test
apportioning both time and loss. Wording which clearly prescribes apportionment of either time or money is noticeable by it’s absence in our contracts. Difficulty with the apportionment approach concerns the prevention principle.
In City Inn Lord Drummond Young said:
‘I agree that it may be possible to show that either a relevant event or a contractor’s risk event is the dominant cause of that delay. A similar principle was recognised in Doyle, at paragraph 15 of the opinion of the court; the principle is derived from the older case of Leyland Shipping Company Ltd v Norwich Union Fire Insurance Society Ltd [1918] AC 350’.
Caution: This should not be read as an unequivocal support for the dominant cause regard has to be paid to the facts.
Note: However, the dominant cause approach has received support in recent years from the decision at first instance in City Inn.
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