DGA Group - WHAT IS CONCURRENT DELAY? PART 1

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EBRIEFINGDECEMBER 2021

WHAT IS CONCURRENT DELAY? PART 1

LEE MALLEK

ASSOCIATE DIRCETOR

Delay disputes in construction are very common and, from my reading, there is ongoing debate and dispute about concurrent delay. In particular, main questions still encountered include:

• What is the meaning of concurrent delay?

• How should the risk of concurrency be allocated, and should this be done in the Contract provisions?

• How should concurrency be analysed?

Case law on concurrent delay can be divided into two categories: those where the definition of concurrent delay is considered and those where the issue is the correct analysis of concurrent delay. In dealing with the questions posed I have produced two separate papers.

In this first article, I have described concurrent delay, considered what it is, and attempted to provide some answers to the reoccurring questions that occur about it. The second article (to follow in a future DGA Ebrief), will discuss the analysis of concurrent delay and its applicable case law.

WHAT IS CONCURRENT DELAY?

BACKGROUND

Concurrent delay happens on many projects. However, on examination of the facts, it is apparent that the concept is often misunderstood and regularly misapplied, causing problems with extension of time and prolongation claims. A successful extension of time claim will relieve the Contractor from suffering damages for a delay to completion, while the (often associated) prolongation claim may additionally demonstrate an entitlement to costs associated with such delay.

There are many Articles and Court judgements that cover the different definitions, approaches and opinions to concurrency, and the issues have been presented and scrutinised in case law over many years. However, the remaining problem remains that there is no standard, accepted, definition of concurrent delay, or accepted methodology for dealing with it. For example, “Do the competing events need to have occurred at exactly the same time to be concurrent?” and “Is apportionment a sensible approach to managing concurrency?”

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LEEDEFINITION – A BRIEF HISTORY

To aid understanding of the meaning of concurrency, I have examined the Courts’ opinions on previous proposed definitions, as well as guidance documents published by recognised organisations such as the Society of Construction Law (SCL) and the Association for the Advancement of Cost Engineering (AACE) and other articles and papers.

In June 1996, the SCL published Paper 58, an article by Iain Wishart titled “Concurrent Delays”. This provided the following useful definition of Concurrency:

“Two or more events which occur during the same time period and which are separately the responsibility of the Employer and the Contractor, each of which caused or would have caused the project to be delayed”.

The principle of concurrency was discussed by Dyson J in the case of “Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 Con LR 32” in 1999, but he applied the term without a very clear definition. In 2001, in “The Royal Brompton Hospital NHS Trust v Hammond (2001) 76 Con. L.R. 148”, when considering the Malmaison Hotel case, HHJ Seymour provided a definition of “true concurrency”, or “real concurrency”, as follows:

“…a situation in which, as it were, the works are proceeding in a regular fashion and on programme, when two things happen, either of which, had it happened on its own, would have caused delay, and one is a relevant event, while the other is not. In such circumstances there is real concurrency as to the causes of the delay.”

In effect, for real concurrency to exist, the two events in question both need to start and finish at almost exactly the same time, and cause the same amount of delay. This is largely where English law currently stands, though the occurrence of “true” concurrency is considered rare (and has subsequently been criticised as being too narrow). It is also noted that the approach in certain Scottish cases has not favoured this narrow distinction.

It is rare for “true concurrency” to occur, because it is rare that delay events have precisely equal causative potency (that is, the two competing causes of delay occurred at the same time, and caused exactly the same extent of delay). However, in most cases, one delay occurs before another, and it is unlikely they will cause the same delay. In such circumstances, it may be the case that one delay is more dominant than the other (such that the other delay is considered non-critical, and therefore not concurrent at all).

In February 2002, John Marrin QC produced a paper for the Society of Construction Law (SCL) titled “Concurrent Delay”, which included a more workable and viable definition:

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“a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency”i .

This has subsequently been used by the courts and (for example) was confirmed in “Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 (Comm)”.

In the Court of Appeal judgement of “North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744”, Lord Justice Coulson confirmed that the definition of concurrent delay used the Adyard case (by J Hamblen QBD, Comm Ct) was a useful working definition and most likely to be accepted by tribunals. The definition is potentially wider (and of more applicability) than that of “true concurrency” adopted in the Royal Brompton case.

In 2012, Keating on Construction Contracts 8-025, defined concurrency as follows ii:

“Concurrent delay can be 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. There is only true concurrency in this sense where both events cause delay to the progress of the works and the delaying effect of the two events is felt at the same time. It is submitted that only in exceptional factual situations is true concurrency of this kind likely to occur. The narrower definition of concurrency, requiring both the timing of the events relied upon and their delaying effect to coincide, is probably too limited”.

i John Marrin QC, SCL Paper, Concurrent Delay, 5 February 2002, Page 3

ii The Hon Sir Vivian Ramsey; Stephen Furst, QC, 2012, Keating on Construction Contracts, 9th Edition, Sweet & Maxwell, Southwark, London, paragraph 8-025

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Both Keating and the recent Adyard case appear to support and approve the Marrin, definition, though they also refer to true concurrency.

In February 2013, John Marrin QC produced an updated SCL paper titled “Concurrent Delay Revisited” in which he returned to the subject. That paper confirmed the definition approved in the Adyard case, as adopted by Keating in paragraph 8-025:

“… the expression “concurrent delay” is used to denote a period of project overun which is caused by two or more effective causes of delay which are of approximately equal causative potency” iii.

GUIDANCE

BACKGROUND

I consider there to be two main industry bodies that have provided useful guidance on the methods of forensic analysis to be used for extension of time assessments, including concurrent delay. The bodies, and their guidance documents, are:

• The Society of Construction Law (SCL), Delay & Disruption Protocol, 2nd Edition, February 2017.

• The Association for the Advancement of Cost Engineering (AACE International), RP 29R-03, 25 April 2011.

THE SOCIETY OF CONSTRUCTION LAW

The SCL was founded in 1983 to consider construction dispute issues, and contribute to the debates on dispute resolution issues. It commenced development of the Delay and Disruption Protocol iv (Protocol) around June 2000, with the intention that such a document would provide useful guidance on extensions of time (EOT) and prolongation claims for the construction industry.

Jeremy Winters, the Chairman of the drafting committee for the 1st edition (and a committee member for 2nd edition), wrote an article about the process in December 2017 for the Adjudication Society, titled, “The Society of Construction Law Delay and Disruption Protocol, 2nd Edition: The Changes and the Reasons for them”v.

iii John Marrin QC, SCL Paper 179, Concurrent Delay Revisited, February 2013, Page 3

iv The Society of Construction Law (SCL), Delay and Disruption Protocol, October 2002

v https://www.adjudication.org/resources/articles/society-construction-law-delay-disruption-protocol-2nd-edition-changes-reasons

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He stated:

“The idea of the Protocol came at a talk which Peter Johnson of Linacre Associates and I gave to the SCL at the National Liberal Club in London in June 2000. The concept was to provide guidance on the issues that came up repeatedly when dealing with extension of time (EOT) and prolongation claims on construction contracts, such as who owns the float, how to deal with concurrent delay, and how to assess costs in delay claims. A drafting sub-committee was formed, with me as chair, and in October 2002, the first edition of the Protocol was launched”.

Concurrent delay was included within the original Protocol (2002) in guidance section 1.4 “Concurrency as it relates to EOT” and section 1.10 “Concurrency as it relates to compensation for prolongation”. The aim was for concurrency to be more easily recognised and resolved in an agreed manner.

The Protocol stated that, in cases of both “true concurrent” delay and “typical concurrency” (i.e. where delays started at different times) that the Contractor should still be entitled to an EOT for the Employer delay. The Protocol’s view was that an Employer should not be entitled to claim liquidated damages from a Contractor if its failure to achieve completion was caused by the need for instructed work (or other delays) by the Employer.

In contrast, in relation to prolongation costs, the 2002 Protocol stated that the Contractor should only receive costs if he can clearly distinguish between the additional time related costs caused by the actions of the different parties. If the Contractor would have incurred the additional costs anyway (due to his own delays) then he should not be entitled to recover them.

As such, the general principle for managing concurrency taken from the original 2002 Protocol, is “Time but no money” (an entitlement to EOT, but not necessarily prolongation costs). The Protocol gave the opinion that English law was in accord with the Malmaison Hotel case.

By comparison, the Scottish law Courts found that apportionment between the competing causes of delay might be appropriate where concurrent delay exists, if there is no dominant cause of delay identifiable (see “City Inn v Shepherd Construction Ltd [2007] CSOH 190”).

Note: Apportionment may be defined as the allocation of the time and cost effects that have impacted project completion based on relative causative potency. However, as noted by Marrin in his Concurrency papers, the English Court has some reservations on apportionment (with him identifying issues with both the Prevention Principle and the “Obverse problem”).

The Prevention Principle arises from a situation where the Employer prevents the contractor from performing the contract (in our case, from completing on time). If the prevention principle

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applies then, unless the contract has specific provisions to cover such a situation, the Employer will not be able to claim liquidated damages associated with delay, because it is a general principle of construction contracts in English law that:

“a party cannot, in the absence of clear terms, take advantage of his own wrong” vi.

The Obverse Problem arises from a situation where there may be opposing party claims which both have validity. In our case, if the delay could fully be caused by the Contractor, then the Employer is nominally entitled to liquidated damages. However, if the delay can also be considered fully caused by the Employers, then the Contractor is nominally entitled to claim its loss/expenses. Logically, both claims cannot succeed together. The Malmaison Hotel approach to assessing concurrency avoids this scenario because, in fact, neither of the claims succeeds (the “time but no money principle”). This appears to be a realistic compromise, which the UK courts have accepted. Apportionment works differently, because it allows both claims to succeed (albeit partially).

Because of the terminology it uses, the JCT Contract also does not allow for a Contractor’s entitlement to be reduced in relation to an Employer’s delay, so apportionment certainly becomes a problem under those terms.

The SCL Protocol (2002), Guidance section provided a definition for concurrency as it relates to extensions of time as follows:

“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. A time when it can occur is at the commencement date (where for example, the Employer fails to give access to the site, but the Contractor has no resources mobilised to carry out any work), but it can arise at any time.vii ”

“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” viii.

However, in April 2013, it was decided that the Protocol needed a review to consider if it was still current, and meeting the intended objectives. It was decided an update was needed, with

vi https://www.keatingchambers.com/wp-content/uploads/2019/07/KC-Legal-Update-Summer-19-Prevention-Principle.pdf

vii The SCL Delay & Disruption Protocol, October 2002, Guidance 1.4.4, page 16.

viii The SCL Delay & Disruption Protocol, October 2002, Guidance 1.4.6, page 16

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the SCL Protocol 2nd Edition (2017) providing the reasons for the update, as follows ix:

• “Developments in the law and construction industry practices since the Protocol was first published in 2002.

• Feedback on the uptake of the Protocol since that time.

• Developments in technology since 2002.

• The scale of large projects having increased, leading to a wider divergence between small scale and large-scale projects.

• Anecdotal evidence that the Protocol is being used for international projects as well as UK projects”.

The intention was not to review the whole SCL Protocol but for the drafting committee to concentrate on eight key issues. Concurrent delay was one of those issues.

In July 2015, the drafting committee issued Rider 1 to the SCL Protocol which did not include concurrency revisions. Only the three most urgent issues were addressed including core principles CP3 “Entitlement to EOT”, CP4 “Procedure for granting EOT” and CP12 “Analysis time distant from the event”.

However, the full SCL Protocol, 2nd Edition (2017), provided core principle 10 which includes the meaning of, and how to deal with concurrent delay. Core principle 14 refers to the effect of concurrency on entitlement to compensation for prolongation.

The SCL Protocol 2nd Edition’s approach to concurrent delay was amended to reflect recent English case law, which recognised that true concurrency is rare. It advises that, to maintain simplicity, only the events that would affect the completion date should be analysed. It also recommends where Employer and Contractor delay events occur sequentially, but have concurrent effects, then a delay analysis should be used to determine if there really is concurrent delay.

The Section 10 definition of Concurrent Delay (in relation to its effect on entitlement to extension of time) reads as followsx :

“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. For concurrent delay to exist, each of the Employer Risk Event and the Contractor Risk Event must be an effective cause of Delay to Completion (i.e. the delays

ix The SCL Delay & Disruption Protocol, 2nd Edition, February 2017, Introduction section I, Page 2

x The SCL, Delay and Disruption Protocol, 2nd Edition, February 2017, Guidance Part B: Guidance on Core Principles, Section 10, Page 29

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must both affect the critical path). Where Contractor Delay to Completion occurs or has an effect concurrently with Employer Delay to Completion, the Contractor’s concurrent delay should not reduce any EOT due”.

“In contrast, a more common usage of the term ‘concurrent delay’ concerns the situation where two or more delay events arise at different times, but the effects of them are felt at the same time”.

The Protocol went on to describe its revised approach to Concurrent delay as follows:

Figure 1 – SCL Delay & Disruption Protocol, Meaning of

Concurrent Delay

Jeremy Winters suggests, in his articlexi , that the Protocol revisions were developed based on the opinions discussed in the following cases. These support the views stated in 10.10 above:

• Adyard v SD Marine [2011] EWHC 848 (Comm) – Hamblen J.

• Walter Lilly v Mackay [2012] EWHC 1773 (TCC) (11 July 2012) – Akenhead R.

xi https://www.adjudication.org/resources/articles/society-construction-law-delay-disruption-protocol-2nd-edition-changes-reasons

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• Jerram Falkus v Fenice Investments [2011] EWHC 1935 (TCC) - Coulson J.

In the “North Midland v Cyden Homes [2017] EWHC 2414 (TCC)” decision, Fraser J, reviewed these cases on the issue of whether the prevention principle was relevant to concurrent delay. He agreed with the reasoning, analysis and conclusions of both Adyard xii and Jerram xiii, stating he would have proceeded on the basis that they were both correct.

Jeremy Winter noted, however, that “The interaction of the prevention principle and the modern judicial approach to concurrent delay are, at minimum, potential topics for the Court of Appeal to look at again”xiv .

In “Saga Cruises BDG Limited and Anor v Fincantieri Spa [2016] EWHC 1875 (Comm)”, the Court rejected the Contractors claim and concluded there was no concurrent delay. It did so on the basis that the project was already in delay by the contractor (before the Employer events occurred) and therefore that delays subsequently caused by the Employer should not result in an extension of time, because they did not cause any (further) delay to completion.

ASSOCIATION FOR THE ADVANCEMENT OF COST ENGINEERING (AACE INTERNATIONAL)

The Association for the Advancement of Cost Engineering (AACE International) was founded in 1956 and has published a range of professional recommended practices (guidance documents) since 1990.

On 25 April 2011 the AACE published “Recommended Practice (RP) 29R-03” which states:

“The purpose of the AACE® International Recommended Practice 29R-03 Forensic Schedule Analysis is to provide a unifying reference of basic technical principles and guidelines for the application of critical path method (CPM) scheduling in forensic schedule analysis”.

It also states that the goal of the Practice note was to “minimize procedural subjectivity” in forensic schedule analysis in order to increase “transparency” and thereby “increase accountability and testability of an opinion”. It intends to achieve this goal “by defining terminology, identifying the methodologies currently being used by forensic scheduling analysts, classifying them, and setting recommended procedural protocols for the use of these techniques.”

The Practice note refers to another AACE recommended practice document, “10S-90 Cost Engineering Terminology” which had already provided a list of five definitions for concurrent delay:

xii Adyard v SD Marine [2011] EWHC 848 (Comm)

xiii Jerram Falkus v Fenice Investments [2011] EWHC 1935 (TCC)

xiv https://www.adjudication.org/resources/articles/society-construction-law-delay-disruption-protocol-2nd-edition-changes-reasons

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Figure 2 – AACE Recommended Practice 29R-03, 4.2 B – Various Definitions of Concurrency, Page 102

Under Section 4, Analysis Evaluation, Part 4.2 addresses various protocols for the identification and quantification of concurrent delay. The authors of the recommended practice acknowledge that the assessment of concurrent delay is arguably, “the most contentious technical subject in forensic schedule analysis” xv.

While acknowledging that contractual variables may impact the identification of concurrent delay, the Practice note identifies several factors that may affect this analysis:

• “Whether concurrency is determined literally or functionally.

• Whether concurrency is determined on the cause or the effect of the delay.

• The frequency, duration, and placement of the analysis interval; (iv) the order of delay insertion or extraction in a stepped implementation.

• Whether the analysis is done using full hindsight or based on knowledge at the time, known as “blind-sight.”

xv AACE Recommended Practice (RP) 29R-03, 25 April 2011, Section 4.2A

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The note provided two different theories with regard to the timing of delay events, stating:

“Under the Literal Theory, the delays have to be literally concurrent in time, as in ‘happening at the same time.’ In contrast, under the Functional Theory, the delays need to be occurring within the same analysis period.”

When compared to the SCL Protocol, it seems the Literal theory considers that the concurrent delays must both be on the critical path and occur at the same time, and effectively be the case of “true concurrency” (which is generally considered rare). However, the Functional Theory indicates that, so long as the delays occur in the same time period (even if they are not necessarily occurring at exactly the same time, or had their origins at different times), then they are likely to both be considered critical (and concurrent).

The practice note also states that following the determination of liability, the net effect of a concurrent delay can be established using the “Net Affect Matrix”. This contains various concurrency scenarios and associated conclusions, as shown below:

Table 1 – AACE 29R-03, 4.1 Excusability & Compensability of Delay, B, Fig 12 Net Effect Matrix for

Concurrent Delay

TYPES OF CONCURRENT DELAY

I provide below some diagrams to provide a visual perspective of the different types of concurrent delay that can be encountered.

As noted above, AACE RP 29R-03 xvi states:

“There are two different theories regarding the exact timing of the two or more delays that are candidates for concurrency. Under the Literal Theory, the delays have to be literally concurrent in time, as in “happening at the same time.” In contrast, under the Functional Theory, the delays need to be occurring within the same analysis period”.

xvi AACE Recommended Practice (RP) 29R-03, 25 April 2011, Section 1, Page 104

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The 2017 Protocolxvii, refers to the first type as “True concurrency” (Literal Theory in AACE 29R-03) where both delay events occur at the same time with the same effect. I show this in Window 1 of Figure 3 above. This is what was being referred to in the Royal Brompton case (and as noted above, is considered to be a very rare occurrence).

The 2017 Protocolxviii refers to the second type as “Concurrent Delay” (Functional Theory in AACE 29R-03), this being somewhat more common, where the Contractor delay event and the Employer delay event may occur at slightly different times, though the critical effect of the delays would cause the same or similar delay (potentially felt at a later date). I show this in Window 2 of Figure 3 below.

Figure 3 – Types of Concurrent Delay

Other variations are shown in Windows 3 and 4 of Figure 3 below which are occasions where there is an overlap between the Contractor delay event and the Employer delay event, but each one would cause delay to the project completion without the other. This can involve partial overlapping (such as Window 3) or a situation when one or other of the delays is fully overlapped by the other (and/or the delays start or finish at the same time).

xvii The SCL, Delay and Disruption Protocol, 2nd Edition, February 2017, Core Principles, Section 10.3, Page 30

xviii The SCL, Delay and Disruption Protocol, 2nd Edition, February 2017, Core Principles, Section 10.4, Page 30

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CONTRACTUAL PROVISIONS

JOINT CONTRACTS TRIBUNAL (JCT)

The Joint Contracts Tribunal (JCT) was initially founded in 1931. The most recent suites of standard construction contracts were published in 2011 and then revised in 2016.

The JCT suite of contracts remains “silent” on the issue of concurrent delay.

There have, however, been a large number of high-profile disputes based around unamended JCT contracts, which did not have a provision for concurrent delay in the contract terms. One such is the “Malmaison Hotel” case noted earlier.

In the Walter Lilly (2012) case, also noted earlier, it was decided that the contractual interpretation of Clause 25 of the JCT Standard Form of Building Contract, Private Without Quantities, 1998 Edition supported a view that, provided the relevant competing events are both “effective”, and both can be shown to have similarly delayed the works, the contractor would be entitled to an extension of time for the whole period of delay (assuming the causation criterion are established).

Despite this, express contract terms can be agreed by the parties which address specific concurrency concerns. In “North Midland Building Ltd v Cyden Homes Ltd [2017] EWHC 2414 (TCC)”, where an amended JCT Design and Build Contract, 2005 edition was used, the parties agreed to place the benefit of concurrent delay on the Employer, which meant that the Contractor failed in certain of his claims for EOT. The case decided that parties to a Contract were free to allocate the risk of concurrent delay as they wished for the assessment of EOT.

As already noted above, and as Akenhead J confirmed in the Walter Lilly case, there are two schools of thought: English and Scottish [Walter Lilly judgement para 366]. In Scottish courts, apportionment may be acceptable, but in English courts, there should be no reduction in the Contractor’s entitlement for an EOT, if entitlement and the causation tests are established.

NEW ENGINEERING CONTRACT (NEC)

The NEC New Engineering Contract was first conceived in 1993, though this has been through a number of iterations, with the forms in common usage now being NEC3 (first published in 2005, with updates in 2013) and the current NEC4 Contract Suite (published in 2017).

The NEC Contract refers to Compensation Events which can encompass both time and cost effects (compared to the splitting of these entitlements into Relevant Events and Relevant Matters in JCT forms). The NEC mechanism for dealing with compensation delay events is intended to be used on a contemporaneous basis, using a prospective planning methodology (akin to a Time Impact Analysis).

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Dr Martin Barnes stated:

“Our philosophy was to produce something which cured every known ill of traditional contracts. We did not have to compromise. Everything we thought would be a good idea went in – and we could decide what to put in solely on the basis of what would stimulate all those using it to manage their contribution well”.

However, this suite of Contracts is also silent in relation to concurrent delay.

FEDERATION INTERNATIONALE DES INGENIEURS CONSEILS (FIDIC)

FIDIC was founded in 1913 and produces various standard contracts for construction, machinery supplies, infrastructure projects and consultancy services. The most commonly used FIDIC Suite of Contracts was issued in 1999 (with Red, Yellow, and Silver books), though the suite was revised in December 2017, leading to what is known as the Rainbow Suite of Contracts (it contains multiple coloured versions and options).

The Rainbow Suite of Contracts places an increased emphasis on dispute avoidance. This is probably due to the variety of different approaches now available (which were not available when the original suite was issued). FIDIC 1999 is different, and now considered somewhat aged, but it is well understood, and many bespoke contracts are based on the 1999 version (with, for example, delay to Taking Over being separated from delay to the Time for Completion).

Some of the FIDIC 2017 forms do include a sub-clause (at 8.5 of the Red Book) which makes reference to concurrent delay:

“If a delay caused by a matter which is the Employer’s responsibility is concurrent with a delay caused by a matter which is the Contractor’s responsibility, the Contractor’s entitlement to EOT shall be assessed in accordance with the rules and procedures stated in the Particular Conditions (if not stated, as appropriate taking due regard of all relevant circumstances)”.

Obviously, the intent of the current FIDIC form is that the parties should at least consider (and record) how they wish to deal with concurrent delay before they enter into Contract.

APPORTIONMENT

One remedy for concurrent delay, noted above as being supported by the Scottish Courts, is Apportionment. This can be defined as the allocation of the time (and/or cost) effects that have impacted project completion to the parties based on their relative causative potency.

In delay terms, the main case in this regard is “City Inn Ltd v Shepherd Construction Ltd [2010]

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BLR 473”, where there were very many delays, all of which contributed to the overall delay suffered. It was held that, where it is not possible to determine which delay event was the “dominant cause”, the contract administrator should exercise their discretion in determining an outcome which is “fair and reasonable”. In that case, an apportionment was made based on the number of events, and the extent of their delay, associated with each of the parties to the Contract.

CONCLUSION

This article has reviewed definitions, examined guidance, and considered various contractual provisions associated with the term “concurrent delay”.

Assessing Concurrency remains a problematic and complex matter, which (even now) seems to suffer from a limited understanding of its definition (not to mention how it should be approached and analysed). When reviewing the documents above, there does now seem to be an emerging agreement within the industry as to the meaning of concurrent delay (that being the definition used in the Adyard case, and summarised in Marrin’s updated Concurrency paper).

However, it remains the case that there are two types of concurrent delay, with the simpler being “true concurrency” (when events both occur and have an effect at the same time) and a more general form of “concurrency” (when delays or their effects overlap in various ways). The former is clearly dealt with under English law (with a “time but no money” award). However, the latter remains less well defined. Marrin indicates that, in such a circumstance, the factual examination may identify that, in reality, there is no concurrency of delay.

The SCL Protocol (2nd Edition) provided improved guidance (based on recent English case law for concurrent delay). The AACE recommended practice note 29R-03 also covers concurrent delay, and is a useful source for consideration.

The standard forms of construction Contract such as JCT and NEC do not formally address concurrent delay, though they do refer to “delays to completion” (which the courts seem to have concluded to mean that the delay has to be “effective”, “causative”, and affect the “actual” critical path).

The most recent FIDIC suite of contracts, at clause 8.5, do refer to concurrent delay. However, while this directs the parties to agree and determine the “Particular Conditions” to deal with concurrency, it does not itself provide such conditions.

In my view, it would be advisable for parties to consider, and seek to address and agree, the issue of concurrency (and the allocation of its risk) when agreeing the Contract. This should include a definition of concurrent delay (which may seek to identify the different types of

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concurrency which can occur) coupled with agreement as to which lie within which party’s risk, and agreement as to which delay analysis methods are agreed (or possibly suitable) to determine the effects of any concurrent delays.

My second article, to follow in a future E-brief, will discuss the potential analysis of concurrent delay, and expand further on the case law potentially applicable to such analysis.

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