Concurrent Delay – Useful Information for Contracting Parties

Concurrent delay occurs when two or more events happen at the same time and both cause a project to be delayed. A number of cases have confirmed that where there is concurrent delay, the contractor is entitled to an extension of time. Employers often amend the standard position so that the contractor is not entitled to additional time. For some time it was unclear whether such amendments would be upheld the courts.

In the recent case of North Midland Building Ltd v Cyden Homes Ltd [2017] EWHC 2414 (TCC), Fraser J reviewed a clause which limited the contractor’s right to an extension of time where a contractor delay event was concurrent with an employer delay event. The clause in question stated that:

“1         Any of the events which are stated to be a cause of delay is a Relevant Event; and

2          Completion of the Works or of any Section has been or is likely to be delayed thereby beyond the relevant Completion Date,

3          And provided that:

  • The contractor has made reasonable and proper efforts to mitigate such delay; and
  • 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

Then, save where these conditions expressly provide otherwise, the Employer shall give an extension of time by fixing such later date as the Completion Date for the Works or section as he then estimates to be fair and reasonable [Emphasis added].”

The contractor argued that the clause fell foul of the prevention principle, and therefore this  rendered time at large and the liquidated damages provisions void. The court declined the relief sought. Fraser J stated that prevention principle is not triggered in cases of concurrent delay. Furthermore, he stated that the prevention principle does not override express wording of the contract.

The effect of this judgment is that parties wishing to include a concurrent delay clause can rely on this case for approved wording of concurrent delay clause, and further that parties are free to allocate the risk of concurrent delay as they choose. In the coming years, we should see more building contracts adopting concurrent delay clauses.

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