Where two or three construction practitioners are gathered together, talk often turns to the impenetrable mysteries of concurrency, global claims and the like.
Unlikely scenarios are conjured, and all agree that the law on the same is obscure and difficult. I would diffidently suggest that the truth is a little more mundane, as Walter Lilly shows.
First, whatever legal philosophers might say, true concurrency is a rare beast indeed. The most helpful case, followed in Lilly, is Henry Boot Construction (UK) Limited v Malmaison Hotel 70 Con LR 32. The Court was concerned with a jurisdictional challenge to an Arbitrator.
The Contractor argued that the Arbitrator could not consider the Employer's positive case and that he could only look at the events pleaded by the Contractor.
This proposition was, unsurprisingly, rejected. This is the context for the well-known statement by the Judge, itself based on a concession:
"..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.
Thus, to take a simple example, if no work is possible on our 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 works 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..."
As one can see, there are a lot of 'ifs' in that passage: concurrency is often argued, but rarely held to exist.
A Court will almost always find that one event was more causative of delay than another. Secondly – and this is not an entirely frivolous point – one can also see in Lilly that it is easier for a very rich, self-made, man to succeed in litigation than it is for him to enter the kingdom of heaven, but not by much.
As Akenhead J said at para 96 of Mr Mackay: "he is a person who is used to getting his own way". Not, it would appear, in his Lordship's Court.
Finally, the Judge made clear that global claims, like any other claims, are to be decided on a common-sense basis.
There is no over-arching legal principle that will resolve such cases, and no guaranteed knockout blow available to those resisting such claims. See para 486 of the Judgment:
"...it can properly be concluded as follows in relation to 'global' or 'total' cost claims:
- Ultimately, claims by contractors for delay or disruption related loss and expense must be proved as a matter of fact...
- It is open to contractors to prove these...elements with whatever evidence will satisfy the tribunal and the requisite standard of proof.
- There is nothing in principle 'wrong' with a 'total' or 'global' cost claim. However, there are added evidential difficulties (in many but not necessarily all cases) which a claimant contractor has to overcome...
- The fact that one or a series of events or factors...caused or contributed...to the total or global loss does not necessarily mean that the claimant contractor can recover nothing.
In short, practitioners should worry less about esoteric conceptual difficulties, and more about ensuring that they can present attractive factual arguments on the merits.
The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.
This material is prepared for Chambers by our Director of Research and Professional Development, Professor Anthony Lavers (LL.B. M.Phil Ph.D. D.Litt MCI.Arb FRICS Barrister) Visiting Professor of Law, Oxford Brookes University.