Knowledge Bank ~ Concurrent Delay – Confusion & Frustration

Many pages of debate and dollars of legal advice have been spent on identifying liability arising from potentially concurrent delays. A number of high profile cases over recent years, which have either not followed previous precedents or left some of the issues open to debate, have made it a hot topic.

Judgements moving in the right direction

Judgements seem to be moving more towards the facts of each individual case (with dare I say ‘common sense’ prevailing), rather than on the academic theory or principles laid down in previous cases. My sense is that this is the right way to go, given the complicated nature of the subject and the fact that no two cases are the same.

The most recent high-profile judgement, Walter Lilly v Mackay, held that the Contractor was due its full time entitlement under the terms of the contract even though there was a concurrent delay. However, the thornier issue of claims for loss and expense remains wide open.

The case for accurate Critical Path Analysis

I note with some skepticism, that the expert witnesses agreed that had there been a complete and updated critical path programme in place, there would have been no difference in outcome between a forward (prospective) and an as-built (retrospective) analysis of the delays. I struggle to agree with this, and believe in practice it would have made a real difference given the amount of change that took place on the project. From my experience an overly theoretical approach to delay analysis frequently causes more problems than it solves in dispute resolution.

Therefore, in my humble opinion, building accurate and real-time critical path information as the project progresses is always the best way, enabling you to accurately provide the burden of proof if a dispute arises; and of course manage the project more efficiently.

What does this confusion mean in practice?

Ensure your team fully understand their contractual obligations and rights, and that these are effectively administered so that these entitlements are secured. Too many dispute cases are needlessly complicated by parties failing to give notice within the specified time-frame. Too often this is the result of weak progress reporting, which in turn leads to poor communication between operational staff and the contract administrator. The domino effect is obvious to see in hindsight, yet with the right expertise, not difficult if set up correctly from the outset.

In summary, make sure you cover all angles:

Sound contract up front
Accurately track & document progress
Robust Critical Path Analysis
Effective contract administration

‘Concurrent Delay’ – A Quick Reminder

In simple terms, it refers to the situation when two or more events have taken place – each caused by opposing parties – either of which would have caused a similar delay to the completion of the project.

The authority on the issue is Mr Marin QC, whose definition in 2002 is generally regarded as definitive:

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

Key Facts & Timelines on Concurrent Delay Judgements

To give you some reference points on the historical judgements, these are the key cases that have shaped the thinking on the issue:

CASE	KEY OUTCOME
Balfour Beatty v Chestermount Properties(1993)	‘Net’ approach to time extension upheld rather than gross entitlement.
Henry Boot v Malmaison (1999) – since regarded as the authoritative ruling	Contractor receives full extension of time entitlement (worth noting however probably NOT time-related costs).
City Inn Ltd v Shepherd Construction (2010)	Unhinged previous Malmaison thinking and interpretations. Apportionment of time extension granted. Ruling stated Critical Path Analysis was not essential – but would have been helpful.
DeBeers UK Ltd v Atos Origin IT Services UK Ltd (2010)	Full time extension granted.
Adyard Abu Dhabi v SD Marine (2011)	Proof of causation needed to prove the actual delay – as none available the claim failed. Note that Critical Path Analysis would have provided this proof.
Walter Lilly v Mackay (2012)	Full entitlement to time extension awarded. The ruling left open the situation with regards claiming costs, however emphasis was placed on the burden of proof that a ‘relevant event’ caused the delay which led to the loss and expense.