Concurrent delay in building work

Causes of Delay

Delays to building work may be caused by:

  1. events which are not under anyone’s control,
  2. actions or omissions by the employer and
  3. actions or omissions by the builder

If events from any two of these categories occur concurrently there is concurrent delay. This is potentially significant where the building contract provides different remedies for delays arising in each category. Much legal dispute has arisen over the correct remedies for concurrent delays and courts in different jurisdictions have adopted differing principles in deciding the remedies. Some building contracts have been modified in response to legal precedent and, in many cases; the modifications remain to be tested in court.

Remedies for Concurrent Delay

Approaches to disputes over work delayed by multiple causes, which have been adopted by the judiciary, include:

  1. Dominant cause, in which the award is based on which delay can be shown to have had the overriding effect.
  2. Apportionment of time, in which the effect of each cause is assessed allowing the employer to recover damages for the delays caused by the builder and the builder to obtain extensions of time with loss and expense for delays caused by the employer.
  3. The award of extensions of time without compensating the builder for the associated loss and expense.

Overlapping Delays

Concurrent is defined by the Oxford English dictionary as “occurring or operating simultaneously or side by side”. Taking this definition, truly concurrent delay is unlikely to occur. One cause of delay is likely to start first and, while it may overlap with subsequent causes of delay, it would be strictly incorrect to characterise these overlapping delays as concurrent.

The problem which has led to the debated and diverse approaches to delayed completion claims is perhaps more to do with the lack of certainty over the history of events than to disagreement over the applicable legal principles. When delay occurs, its initial effect on progress may be immediately apparent but how this will affect completion often cannot be predicted with certainty. Even were delays to progress to be punctually fed into a computerised critical path programme to generate predicted delays to completion, the possibility of modifying sequencing, methodology, staffing, etc. to reduce delay, remains.

Disruption to Progress

To predict late completion without exploring ways to overcome incidental disruption and delay may be said to show a want of care and, to be incapable of adapting work on site to overcome all and any causes of delay and disruption, to show a lack of skill. To claim more time with payments for loss and expense based on the absence of skill and care is not obviously a sound basis for a sustainable claim and some contracts seek to make a builder’s right to an extension of time contingent on its using its best endeavours to prevent delayed progress causing late completion.

Delays to Completion

Where the employer prevents the builder completing on time, there is a sound basis for deciding it is not entitled to damages for the consequential late completion. Where the builder has delayed completion through its own fault, there is an equally sound basis for not extending time and payment. Where both causes of delay occur and overlap, the English courts appear presently to favour an unpaid extension of time. [1] This accommodates the difficulty of properly apportioning blame to each culpable act but is such a compromise the best we can do?

[1] see for example Henry Boot Construction vs Malmaison Hotel (Manchester) Ltd (1999)