Watch Out, Watch Out… Concurrent Delay is Being Struck Out!

The subject of concurrent delay has been before the English courts on many occasions. The conventionally accepted approach of dealing with concurrency was described by Dyson J in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 Con LR 33 as follows:

“… if there are two concurrent causes of delay, one of which is a relevant event, and the other is not, then the contractor is entitled to an extension of time for the period of delay caused by the relevant event notwithstanding the concurrent effect of the other event.”

It is becoming increasingly common to see contracts where employers have included clauses taking away the contractor’s right to extensions of time in the event of concurrent delay. One such contract came before the court in North Midland Building Ltd v Cyden Homes Ltd [2017] EWHC 2424 (TCC).

North Midland had been engaged by Cyden to build a large residence in Lincolnshire under an amended JCT 2005 Design and Build Contract. Clause 2.25 entitled the contractor to an extension of time if it was delayed by a Relevant Event. However, the employer had amended the standard form, adding a new clause 2.25.3 (b) which said:

“Any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account.

The contractor argued that the clause was unenforceable since it ran against the “prevention principle” in that it would deprive the contractor of extensions of time to which it would otherwise have been entitled, thereby allowing the employer to benefit from its own breach. As a result, the contractor argued, time had been set at large and it had a reasonable time to complete.

The judge, in deciding against the contractor, said that the intent of the clause was “crystal clear” and that the “parties are free to agree whatever terms they wish to agree, with the obvious exceptions such as illegality”. He continued: “there is no rule of law of which I am aware that prevents the parties from agreeing that concurrent delay be dealt with in any particular way.”

Therefore, in principle, at least, it is very clear. By provision of an express term in a contract, it is permissible to exclude an entitlement to extensions of time in the event of concurrent delay. The real difficulty of course is determining whether any two delays are in fact concurrent.

Concurrency is a lot easier to allege than to prove and no doubt contractors will be left to demonstrate that there was in fact no concurrent critical delay. In view of the rarity of true concurrency, this should not prove too difficult provided the contractor has kept accurate, regularly updated programmes.”
David Gainsbury, Executive Director, Europe, HKA
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