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    Concurrent Delays

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    Uditha Anuruddtha
    This document discusses various approaches to dealing with concurrent delays in construction contracts, including: 1) The SCL Protocol defines concurrent delay as two or more delay events occurring at the same time, one caused by the employer and one by the contractor. The SCL ruling is that the contractor should receive the full extension of time in this situation without reduction. 2) The dominant cause approach finds the contractor entitled to an extension of time if the delay caused by the employer is the dominant cause, even if the contractor's actions also contributed. 3) The apportionment approach attempts to allocate responsibility between employer and contractor delays when both parties contributed to the overall delay. Courts have found apportionment difficult but fair when

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    Concurrent Delays

    Uploaded by

    Uditha Anuruddtha
    103 views23 pages
    This document discusses various approaches to dealing with concurrent delays in construction contracts, including: 1) The SCL Protocol defines concurrent delay as two or more delay events occurring at the same time, one caused by the employer and one by the contractor. The SCL ruling is that the contractor should receive the full extension of time in this situation without reduction. 2) The dominant cause approach finds the contractor entitled to an extension of time if the delay caused by the employer is the dominant cause, even if the contractor's actions also contributed. 3) The apportionment approach attempts to allocate responsibility between employer and contractor delays when both parties contributed to the overall delay. Courts have found apportionment difficult but fair when

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    This document discusses various approaches to dealing with concurrent delays in construction contracts, including: 1) The SCL Protocol defines concurrent delay as two or more delay events occurring at the same time, one caused by the employer and one by the contractor. The SCL ruling is that the contractor should receive the full extension of time in this situation without reduction. 2) The dominant cause approach finds the contractor entitled to an extension of time if the delay caused by the employer is the dominant cause, even if the contractor's actions also contributed. 3) The apportionment approach attempts to allocate responsibility between employer and contractor delays when both parties contributed to the overall delay. Courts have found apportionment difficult but fair when

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    103 views23 pages

    Concurrent Delays

    Uploaded by

    Uditha Anuruddtha
    This document discusses various approaches to dealing with concurrent delays in construction contracts, including: 1) The SCL Protocol defines concurrent delay as two or more delay events occurring at the same time, one caused by the employer and one by the contractor. The SCL ruling is that the contractor should receive the full extension of time in this situation without reduction. 2) The dominant cause approach finds the contractor entitled to an extension of time if the delay caused by the employer is the dominant cause, even if the contractor's actions also contributed. 3) The apportionment approach attempts to allocate responsibility between employer and contractor delays when both parties contributed to the overall delay. Courts have found apportionment difficult but fair when

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    © All Rights Reserved
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    Download as pptx, pdf, or txt
    of 23

    DEALING WITH

    CONCURRENT DELAYS
    CONTRACTOR OBLIGATIONS
     Complete works by certain date or
    within specified period; possibly with
    stage or sectional completion
     Progress the works regularly and
    diligently
     Promptly give notice on specific
    probable future events or
    circumstances, which may adversely
    affect the work, increase the Contract
    Price or delay the execution of the
    Works
    EMPLOYER OBLIGATIONS
     Completion of obligations specified in
    the contract
     implied obligation not to hinder
     implied obligation to cooperate
    Peak Construction v McKinney Foundations (1970) 1 BLR 111

    “If the failure to complete on time is due to


    the fault of both the employer and the
    contractor, in my view the clause does not
    bite. I cannot see how, in the ordinary
    course, the employer can insist on
    compliance with a condition if it is partly his
    own fault that it cannot be fulfilled…”

    The rationale behind this decision is that it


    is not equitable for an employer to retain
    the benefit of liquidated damages if by its
    own act it has caused the delay.
    SCL PROTOCOL
     Published in 2002
     Not a contract document
     Not to take precedence over express
    contract terms
     Not a statement of law
     A guidance only
     No absolute answers for all matters
     Not a benchmark
     Apply rules with common sense
     No liability taken
     Take advice where necessary
    SCL DEFINES CONCURRENT
    DELAY
    “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”.

    (a 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). 
    SCL RULING
     If in the occurrence of ‘overlapped’
    delay, the contractor shall be entitled to
    the entire days of extension of time
    without any reduction
     It is wrong for the employer to deduct
    liquidated damages from the contractor
    in an event which is contributed by the
    employer themselves 
     An employer should not be allowed to
    prevent the contractor to complete his
    obligation to complete the work on time
    SCL RULING
     By awarding extension of time for the total
    period of the employer’s caused delay the
    employer will avoid the contract completion
    date to be ‘at large’
     Literally illustrates that the SCL protocol is not
    supporting the idea of apportioning the liability
     The SCL recommends proactive action in
    pursuing delay events. The contractor should
    not delay in making claim and the Contract
    Administrator in assessing entitlement
    SCL RULING
     Do a separate assessment on the
    contractor’s entitlement for an
    extension of time and entitlement for
    cost related due to the delay
     Granting extension of time as
    suggested by the SCL Protocol is
    difficult unless the contractor is ready
    to come clean and plead guilty for
    every delay caused by them 
    FIRST IN LINE
     Where there are two events causing a delay, the
    event that took place first in time, irrespective of
    who caused it, is the cause of the whole delay
     This approach assumes that the first event is the
    cause of the whole delay and the liability is
    decided merely on the order of time
     Accordingly, if the event is a ground for extension
    of time the contractor gets the extension even if
    his subsequent actions compounded the delays
     By operating on all-or-nothing basis, this
    approach clearly fails to take into account the
    circumstances of which party was largely
    responsible for the delay
    DEVLIN APPROACH

    Heskell v Continental Express Limited (1950) 1 All


    England 1033
     If a breach of contract is one of two causes of a loss, both co-
    operating and of approximately equal efficacies, the breach are
    sufficient to carry judgment for the loss
     When there are two competing events, one caused by the
    employer and the other caused by the contractor, each causing
    a delay - concurrently - then the contractor is entitled to an
    extension of time to the extent of the delay caused by the
    employer caused event
     For example there were two competing causes of delay which
    entitled a contractor to an extension of time, one a neutral
    event such as excessively adverse weather and the other being
    a breach such as late issue of instruction by the architect.
    Applying this approach the contractor would be entitled to an
    extension of time and also the recovery of additional cost
    MALMAISON TEST
    Henry Boot Construction (UK) Ltd v
    Malmaison Hotel (Manchester) Ltd (1999) 70
    Con LR 32

    “if no work is possible on a site for a week not only


    because of exceptionally inclement weather (a
    relevant event), but also because the contractor
    has a shortage of labour (not a relevant event)
    and if the failure to work during that week is likely
    to delay the work beyond the completion date by
    one week, then if he considers it fair and
    reasonable to do so, the architect is required to
    grant an extension of time of one week. He cannot
    DOMINANT CAUSE

     If there are two causes, one the contractual


    responsibility of the defendant and the other the
    claimant, the claimant succeeds if he
    establishes that the cause for which the
    defendant is responsible is the ‘dominant’ cause
     If the dominant cause is the contractual
    responsibility of the employer, the contractor is
    entitled for time extension. If the dominant
    cause is the contractual responsibility of the
    contractor, his claim for loss and expense fails
    and he must pay liquidated damages for the
    period of delay
    H Fairweather & Co Ltd v London Borough
    of Wandsworth (1987)
    This case resulted from a contract to construct 478 dwellings employing
    a JCT 63 contract. Work was delayed by strikes, late instructions on the
    part of the Architect and variations. The Architect granted 81 weeks
    extension in respect of strikes. It was argued before the arbitrator by the
    contractor that 18 of those weeks should have been allocated to late
    instructions and variations. The arbitrator disagreed and accepted the
    Architects decision on the basis that the delay caused by the strikes was
    the dominant one. On appeal the court overruled the decision of the
    arbitrator in rejecting the dominant cause approach where it was said:

    “Dominant has a number of meanings: Ruling, prevailing, most


    influential. On the assumption that condition 23 is not solely
    concerned with liquidated or ascertained damages but also
    triggers and conditions a right for a contractor to recover direct
    loss and expense where applicable under condition 24 then an
    architect and in his turn an arbitrator has the task of allocating
    where the facts require it the extension of time to the various
    heads. I do not consider that the dominant test is correct”.
    APPORTIONMENT OF LIABILITIES
    The Jefferson Hotel Co. v. Burmbaugh, 168
    F.2d 867 (4th Cir. 1909) is another landmark
     At the end of the contractor’s work, the employer
    imposed liquidated damages at the rate of $150 per
    day. In contrast, the contractor argued that its work
    was largely dependent upon the material suppliers
    and independent contractors of the employer and
    they were the source of delay. In turn, the employer
    argued the “Contractor was responsible for the
    longest period of delay and the employer for only a
    few of the days, and that the Courts, under
    circumstances, should attempt to ‘apportion’ the
    blame between the two and hold the contractor liable
    in penalty for those days that it, in its judgment,
    deems he may be chargeable with.” In essence, the
    employer sought apportionment of damages
    The Jefferson Hotel Co. v. Burmbaugh,
    168 F.2d 867 (4th Cir. 1909) is
    another landmark Cont.….
     The Jefferson Courts stated that this is
    just what the Courts cannot do with any
    degree of precision. It needs a more
    practical approach on site operations to
    realize the eventualities that took place.
    Courts declined the request for
    apportionment of delays whenever the
    causes have been mutual
    City Inn v Shepherd Construction

     Works completed over 11 weeks late


     Architect awarded an extension of time of
    only two weeks
     Employer wanted to levy more than 9 weeks
    of liquidated damages at £30,000 per week
     Contractor wanted the full extension of time
    plus loss and expense at £11,519 per week
     City Inn Ltd v Shepherd Construction Ltd
    [2007] CSOH 190
    City Inn v Shepherd Construction

     Contractor-late variations or instructions issued by


    the architect; and
     Employer-late or defective work to two areas of
    work
     Not possible to do a critical path analysis of the delay
    as there was not an appropriate initial program
     To what extent had the gross delay been caused by
    the delays of the employer and the contractor?
     All delays identified by the parties were concurrent
    causes of the gross delay
     Court apportioned the delays by reference to
    common sense and a consideration of what was “fair
    and reasonable”
    Laing Management (Scotland) Ltd v
    John Doyle Construction Ltd
     Laing claimed a 22 week extension of time and £4.8
    million in loss and expense
     Court held:
    Where the loss was caused both the employer and by
    the contractor, then the contractor must establish the
    employer’s delays are the “dominant cause “ of the
    loss –similar to position in tort
     Followed in Maersk Oil UK Ltd v Dresser-Rand UK Ltd
    “if an apportionment, based on the evidence is possible,
    albeit difficult, it would be manifestly unjust to deny a
    remedy, where there are plain contractual breaches by the
    defendant/employer.”
     It is the time that the
    delay is suffered, and
    not the time that the
    event occurs, that is the
    key factor in determining
    concurrency. CONCLUSION
     Contractors will be
    generally entitled to an
    extension of time where
    there are concurrent
    delays, even if one of
    those delays is due to his
    breach.

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