In Barton Legal's May 2023 webinar, speaker Xavier Leynaud explored the "gibberish" of concurrent delays.
Concurrent delays are defined in various ways under common law. The Society of Construction Law UK in their Delay and Disruption Protocol principle 10, define a true concurrent delay as "the 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.". For concurrent delay to exist, both the Employer Risk Event and the Contractor Risk Event must be an effective cause of Delay to Completion, meaning the delays must both affect the critical path of the project.
Principle 10 also states "Where Contractor Delay to Completion occurs or has an effect concurrently with Employer Delay to Completion, the Contractor's concurrent delay should not reduce any EOT due.".
The Association for the Advancement of Cost Engineering ("AACE International"), in '10S: Cost Engineering Terminology' provide five definitions of concurrent delays, but speaker Xavier focused on the following definition, which is "Concurrent delays occur when there are two or more independent causes of delay during the same time period. The "same" time period from which concurrency is measured, however, is not always literally within the exact period of time. For delays to be considered concurrent, most courts do not require that the period of concurrent delay precisely match. The period of "concurrency" of the delays can be related by circumstances, even though the circumstances may not have occurred during exactly the same time of period [1].
So, how do you deal with concurrent delays? In the UK, there are 3 main types of approach.
The first approach, is the 'first in line' approach, from the case of Royal Brompton Hospital v. Hammond & Others (N°7) (2001) 76 Con LR 148, EWCA Civ206. This states that the first occurring event of two overlapping events is considered to have caused the entirety of the critical delay.
The second approach descends from John Doyle Construction Ltd. V. Laing Management (Scotland) Ltd. (2004); BLR 395 and is the 'Dominant Cause' approach (effective cause or proximate cause). In paragraph 15 of their judgement, Byrne J. went on to say "if an event or events for which the employer is responsible can be described as the dominant cause of an item of loss, that will be sufficient to establish liability, notwithstanding the existence of other causes that are to some degree at least concurrent."
The third approach is 'Apportionment', which states that the liability for the delay is shared based on the relative significance of the risk events.
A principle that is used in both UK law and US law, is the 'But For Test' (SCL)/ 'What-if Test' (AACEI), which can be used with schedule updates. The test focuses on three elements of the schedule:
- Establish the schedule as carried out (as-built) with – the effective completion date and the overall delay of the project – delays attributable to the various parties.
- Establish the schedule as-built by removing the delays attributable to the Owner. This makes it possible to assess the impact of delays attributable to the Owner on the completion date.
- Establish the schedule as-built by removing the delays attributable to the Contractor. This makes it possible to assess the impact of delays attributable to the Contractor on the completion date. Proceed in the same way if delays are attributed to Force Majeure. – The concomitant delay equals the Overall Project Delay minus the sum of the impacts of the delays attributable to each Party.
In conclusion, addressing concurrent delays in international projects requires a multifaceted approach that integrates proactive planning, effective communication, and robust risk management strategies. By recognising the complexities of concurrent delays and implementing comprehensive mitigation measures, project managers can enhance their ability to navigate these challenges.
Ultimately, a well-coordinated approach ensures that projects remain on track, maintaining their objectives and delivering value despite the inevitable uncertainties of international projects.
This topic was discussed in our webinar 'Concurrent delays in international projects' in May 2023. Click hereto view the webinar and presentation.
Footnote
1 Construction Delay Claims, Third Edition, Barry B. Bramble, Esq., Michael T. Callahan, Esq., Aspen Publishers, New York, NY, 2006
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
