CONCURRENCY DELAY - Is A BUT FOR' Analysis The Legal Interpretation PDF

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CONCURRENCY DELAY - is a ‘BUT FOR’ analysis the Legal Interpretation?
INTRODUCTION
When a Contractor submits a genuine and bona fide extension of time [“EOT”] claim, the customary and
reflex response from Employers is to question the Contractors ‘concurrent delays’, often in an attempt to
reduce proposed time claims / costs. The aim of this article is to provide an analysis of concurrency and the
debates prevalent in many construction disputes, as it appears that eminent UK Judges decisions has not
filtered down to all construction personnel and/or the paymasters at the ‘workface’ and ‘BUT FOR’
techniques are employed regardless of the criticality or otherwise. .
The article also shows how to tackle ‘concurrency’ given the implications of the rulings set out by common
law decisions1.
Most construction professionals understand concurrency as two simultaneous events that have occurred
and if (any) one had not occurred then the other would have caused delay to the Completion Date. This is
sometimes known as the ‘But For’ assessment however this is not the strict legal interpretation of
concurrent delay and the scenarios below highlight the legal interpretation.
To define what concurrency is legally, an analysis of leading legal cases concerning concurrency in the UK
has been undertaken. The analysis describes concurrency issues particular to the highlighted cases and the
courts decisions. The interpretation of the EOT granted and concurrency arguments will be explained
graphically in a simple bar chart format in each of the circumstances.
WHAT IS CONCURRENT DELAY?

A useful working definition of concurrent delay is
• "a period of project overrun which is caused by two or more effective causes of delay which are
of approximately equal causative potency".2
1 Walter Lilly v Mackay (2012) TCC

2 Concurrent Delay John Marrin QC
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• True concurrent delay is the occurrence of two or more delay events at the same time, one an
Employer Risk Event, the other a Contractor Risk Event and genuinely independent of one another,
the effects of which are felt at the same time.3
• When the effects of delays are simultaneous at a point in time this is ‘concurrent effect’4
To demonstrate concurrent delay, a valid critical path has to be established and two possible scenarios are
considered:
• Two events operating at the same time causing the same delay
• Two events operating sequentially which are likely to have the same effect on completion
MALMAISON
An important case in the English courts which provides some clarity on concurrent delay is that approved
in Malmaison5:
“It is agreed that 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”.
”
Justice Dyson gave the following example:
“…if no work is possible on a site for a week not only because of exceptionally inclement weather, but also
because the contractor has a shortage of labour 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. He cannot refuse to do so on the
grounds that the delay would have occurred in any event...”
The example of concurrent delay, as described in Malmaison, is presented graphically in Charts 1 and 2
below. Chart 1 shows a theoretical baseline programme used for this exercise.
3 Delay and Disruption Protocol – K. Pickavance – 3rd Edition

4 Society of Construction Law Delay and Disruption Protocol: October 2002
5 Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd TCC (1999):
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Chart 1
20/08/2009
Line Name
-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
1 Project Start 1 Project Start
2 Procurement
2 Procurement
3 Steelwork Design
3 Steelwork Design
4 Steelwork Procurement
5 Excavate Foundations
6 Reinforcement to Foundations
7 Internal drainage & ducting
8 Insert Bolt Boxes
8 Insert Bolt Boxes
9 Pour Foundations
9 Pour Foundations
10 Strip Bolt Boxes
10 Strip Bolt Boxes
11 Structural Steelwork
12 Blockwork to Floor Level
13 Roof & Wall Cladding
14 Floor slab
14 Floor slab
15 Internal Works
15 Internal Works
16 Landscaping
16 Landscaping
17 Snagging
17 Snagging
18 Completion & Handover
Activity Key
Activities
Drawn by: Dwg No. Revision No. Notes:
Project Ref. C:\Documents and Settings\nicholasj\Desktop\Concurrency\Chart 1.pp Planned by Asta Powerproject
Chart 1 – Baseline Programme
At the end of week 1, progress was as planned, thus: -

• The Project start milestone is complete
• Steelwork Design is complete
• Excavate Foundations is 50% complete
However, in week 2, two concurrent causes of delay, as described in Malmaison, are introduced and
impacted onto the baseline programme. The two concurrent causes of delay examples are noted as:
• Inclement weather (Relevant Event)
• Shortage of Labour (Contractors Delay Event)
Both events (Inclement weather and the shortage of labour) occur for a period of one week and highlight a
predicted one-week delay to the project Completion Date.
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Chart 2 - Henry Boot Construction v Malmaison Hotel

20/08/2009
Line Name
-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
1 Inclement weather (Relevant Event) 1 Inclement weather (Relevant Event)
2 Shortage of Labour (Non- Relevant Event) 2 Shortage of Labour (Non- Relevant Event)
3 Project Start
3 Project Start
4 Procurement
4 Procurement
5 Steelwork Design 5 Steelwork Design
Contractors Entitlement to an EoT
7 Excavate Foundations 7 Excavate Foundations
10 Insert Bolt Boxes
11 Pour Foundations
11 Pour Foundations
12 Strip Bolt Boxes
12 Strip Bolt Boxes
16 Floor slab
16 Floor slab
17 Internal Works
17 Internal Works
18 Landscaping
18 Landscaping
19 Snagging
19 Snagging
Activity Key
Relevant Event Non Relevant Event Activities
Drawn by: Dwg No. Revision No. Notes:
Project Ref. C:\Documents and Settings\nicholasj\Desktop\Concurrency\Chart 2 (Relevant Event).pp Planned by Asta Powerproject
Chart 2 – Impacted Baseline Programme
SUMMARY OF MALMAISON
Where there are two concurrent events both of which are independent (and would individually cause a
likely period of delay) one of which is culpable, the other, which is compensateable, the Contractor is
entitled to an EOT in respect of the compensateable delay. Concurrency in relation to costs is another
hurdle as the Contractor is actually only late after the Completion Date (original or revised).
However, confusion arises when ‘True Concurrency’ as shown in the above example does not occur!
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ROYAL BROMPTON HOSPITAL
The example below highlights what could happen when an event occurs in a period of existing delay. The
situation was given clarity in Royal Brompton.6 Chart 3 shows that a Contractors culpable delay event has
occurred leading to a shortage of labour for a period of three weeks. The predicted effects of this
Contractor culpable delay are: -
• It has delayed the start of Reinforcement to Foundations for a period of three weeks.
• The project Completion Date is likely to be delayed by three weeks.
Chart 3 - Royal Brompton Hospital
Line Name
-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
1 Delay in obtaining sufficient labour for reinforcement 1 Delay in obtaining sufficient labour for reinforcement
2 Project Start
2 Project Start
3 Procurement
3 Procurement
4 Steelwork Design
4 Steelwork Design

9 Insert Bolt Boxes

9 Insert Bolt Boxes
10 Pour Foundations
10 Pour Foundations Contractors Culpable
Delay
11 Strip Bolt Boxes
11 Strip Bolt Boxes


15 Floor slab
15 Floor slab
16 Internal Works
16 Internal Works
17 Landscaping
17 Landscaping
18 Snagging
18 Snagging

Activity Key
Relevant Event Activities
Draw n by: Dw g No. Revision No. Notes:
Planned by Asta Powerproject
Chart 3 – Impacted Contractor delay
6 Royal Brompton Hospital NHS Trust v Fredric A Hammond & Others (2000) EWHC
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Chart 3 shows Contractors culpable delay, caused by a lack of labour to construct reinforcement, has
impacted the Reinforcement to Foundations activity and is likely to cause the project to be delayed by
three weeks. However, if another independent event occurred in this period of delay and was attributable
to the Employer, it would appear that a ‘concurrent delay’ occurred.
Chart 4 shows the impact of the Employer delay in a period of existing delay.
Chart 4 - Royal Brompton Hospital
Line Name
-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Delay in obtaining sufficient labour for
1 1 Delay in obtaining sufficient labour for reinforcement
reinforcement
2 Revised Steelwork Design 2 Revised Steelwork Design
3 Revised Steelwork Procurement 3 Revised Steelwork Procurement
4 Project Start
4 Project Start
5 Procurement
5 Procurement
6 Steelwork Design
6 Steelwork Design

Contractor
Culpable Delay
12 Pour Foundations
12 Pour Foundations
13 Strip Bolt Boxes

13 Strip Bolt Boxes


17 Floor slab
17 Floor slab
18 Internal Works
18 Internal Works
19 Landscaping
19 Landscaping
20 Snagging
20 Snagging

Activity Key
Contractor Relevant Event Employer Relevant Event Activities
Chart 4 –Additional Employer delays in a period of existing Contractor delay
Chart 4 is a representation of the Judges statement in Royal Brompton. The additional Employer ‘delay’
impacted on the programme is:
• Line 3 - Revised Steelwork Procurement activity, noted as an Employer event.
The chart shows that delayed Steelwork Procurement has no impact on the Structural Steelwork activity:
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“… to be clear what one means by events operating concurrently….work already being delayed…because
the contractor has had difficulty in obtaining sufficient labour, an event occurs which is a Relevant Event
and which, had the contractor not been delayed, would have caused him to be delayed, but which In fact,
by reason of the existing delay, made no difference.”
SUMMARY OF ROYAL BROMPTON HOSPITAL
The important point to note from the example highlighted is that relevant and claimed ‘concurrent events’
sometimes do not have any effect upon the Completion Date. This scenario is an example of assumed
concurrent delay when the causes of ‘delays’ occur at different times. The Employer event occurs later in
the programme than the initial Contractor delay, the impact is such that no further project completion
delay occurs due to this event. This scenario highlights the criticality of the timing of events and the
importance of accurate contemporaneous record keeping by both parties.
It also highlights the difference between a strict legal interpretation of concurrent delay and a ‘BUT FOR’
technique often employed. It is fair to state that to be considered as a concurrent delay, the event must
affect the critical path / likely Completion Date and previous delays / progress updates must be
considered.
CHESTERMOUNT PROPERTIES
In Chestermount Properties7 a further type of concurrent delay situation was brought to the courts
attention. Justice Coleman stated:
“where a relevant event occurred during a period of culpable delay, the revised completion date should be
calculated on a net basis, that is by taking the date currently fixed and adding to it the number of days …
regarded as fair and reasonable in respect of the consequences of the relevant event….”
Thus, if an Employer event occurs in a period of Contractor delay and the delay extends the Completion
Date beyond that caused by the existing culpable delay, then the Contractor is only entitled to the ‘Net’
additional delay. This scenario is represented in Chart 5 below
7 Balfour Beatty Ltd v Chestermount Properties [1993] 32 Con LR 139
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Chart 5 - Balfour Beatty v Chestermount Properties
-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Line Name
Delay in obtaining sufficient labour for 1 Delay in obtaining sufficient labour for reinforcement (Contractor Relevant Event)
1
reinforcement (Contractor Relevant Event)
Revised steelwork design (Employer Relevant

2 2 Revised steelwork design (Employer Relevant Event)
Event)
3 Revised Procurement 3 Revised Procurement
4 Project Start
4 Project Start
5 Procurement
5 Procurement
6 Steelwork Design Contractor Entitlement to an EoT

6 Steelwork Design


12 Pour Foundations
12 Pour Foundations
13 Strip Bolt Boxes

13 Strip Bolt Boxes


17 Floor slab
17 Floor slab
18 Internal Works
18 Internal Works
19 Landscaping
19 Landscaping
20 Snagging
20 Snagging

Activity Key
Chart 5 –Additional Employer delays in a period of existing Contractor delay “Net Effect”
SUMMARY OF CHESTERMOUNT
Where there are two consecutive events, the first of which is culpable and causes a delay, the second of
which compensateable and causes a further delay beyond that caused by the earlier culpable event, the
Contractor is entitled to an EOT but only in respect of the additional delay caused by the compensable
event – described as the “net effect”
MCALPINE HUMBEROAK
In one of the most fiercely contested disputes in legal history regarding concurrent delays the Court of
Appeal in McAlpine Humberoak8 upheld Lord Justice Lloyd’s decision that:
“If a contractor is already a year late through his culpable fault, it would be absurd that the employer
should lose his claim for unliquidated damages just because, at the last moment, he orders an extra coat
of paint.”
8 McAlpine Humberoak Ltd v McDermott International Inc. (No1) [1992]
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Chart 6 shows the initial Contractors delay due to a shortage of labour, having the effect of a three-week
culpable delay. An instruction to supply and install additional gates is then issued two weeks after the
original Completion Date but within the Contractor period of delay. The supply and installation of the gates
further delays the project by an additional 3 days. This is commonly known as the 'dot on' principle.
Chart 6 - McAlpine Humberoak v McDermot International
Line Name
-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Delay in obtaining sufficient Labour for
1 1 Delay in obtaining sufficient Labour for reinforcement
reinforcement
2 Architects Instruction to supply additional gates 2 Architects Instruction to supply additional gates
3 Supply & Install additional gates 3 Supply & Install additional gates
4 Project Start
4 Project Start
Contractor
Entitlement to
5 Procurement
5 Procurement 3 days EoT
6 Steelwork Design
6 Steelwork Design

10 Internal drainage & ducting Contractor
Culpable Delay -
11 Insert Bolt Boxes 3 weeks
12 Pour Foundations
12 Pour Foundations
13 Strip Bolt Boxes

13 Strip Bolt Boxes


17 Floor slab
17 Floor slab
18 Internal Works
18 Internal Works
19 Landscaping
19 Landscaping
20 Snagging
20 Snagging

Activity Key
Chart 4 –Employer delays in a period of existing contractor delay
SUMMARY OF MCALPINE V MCDERMOTT
Where there are two consecutive events, the first of which is culpable and causes a delay, the second of
which compensateable and causes a further delay beyond that caused by the earlier culpable event, the
Contractor is entitled to an EOT but only in respect of the additional delay caused by the compensable
event.
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CITY INNS v SHEPHERD
In Scotland the position taken by the courts is different. Lord Drummond Young9 decided on matters in
which the Contractor sought an EOT for three main delays.- City Inns argued that the delays caused by late
architects’ instructions were not on the “as-built critical path”10and that dominant causes of delay, that
affected ‘Practical Completion’, were works attributable to the Contractor. Lord Drummond Young stated
that
“So far as the causative significance of each event is concerned, all caused some delay…it may be possible
to show that either a relevant event or a contractors risk event is the dominant cause of that delay, and in
such a case that event should be treated as the cause of the delay”
Lord Drummond Young concluded:

“Apportionment enables the architect to reach a fair assessment of the extent to which completion has
been delayed by Relevant Events whilst at the same time taking into account the effect of other events
which involve contractor default”
SUMMARY OF CITY INNS
The Contractor in this instance did not have a baseline programme to rely upon and a prospective critical
path analysis (at the time of the events) was attempted by the City Inns delay expert by reconstructing the
programme from a hard copy, which was trivialised and made redundant. .
Lord Drummond Young decided that it is ‘appropriate to apportion responsibility for concurrent delay on a
‘fair and reasonable basis’ as none of the causes of delay were considered ‘dominant events’. Albeit a
critical path must have existed and some of the events would surely be less dominant than others?
NB Justice Akenhead in Walter Lilly11 (2012) did not follow City Inns and his judgement has defined
concurrency arguments either side of Hadrian’s Wall.
9 City Inns v Shepherd OHCS [2007]

10 Retrospective TIAs: Time to Lay Them to Rest --John C. Livengood
11 Walter Lilly v Mackay TCC [2012] para 370
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“The fact that the Architect has to award a "fair and reasonable" extension does not imply that there
should be some apportionment in the case of concurrent delays… It therefore follows that, although of
persuasive weight, the City Inn case is inapplicable within this jurisdiction.
CONCLUSIONS
On complex projects with multiple critical and ‘near critical’ paths impacted by multiple Contractor and
Employer events simultaneously, delay events are difficult to track retrospectively. It may be possible to
show that either a culpable or compensateable cause is the dominant event, in such a case the dominant
event should be treated as the cause of the delay.
Contractors and Employers appear to be confused by the concept of concurrent delay and
compensateable delay events are often lumped in as ‘concurrent delay’ in an attempt to minimise culpable
delays in the hope of relief from potential damages claims.
Complex construction projects usually necessitate the requirement of programming software package not
only to manage time (and provide an analysis of delays) but are also used to demonstrate cause and effect
in the most straightforward manner.12 A reasonable baseline programme is therefore fundamental to
manage the works but also, any analysis of cause and effect relies upon proof of the effect of an event on
the Contractors’ intent. In Balfour Beatty13 Justice Lloyd went one step further in support of critical path
analysis when stated:
“By now one would have thought that it was well understood that, on a contract of this kind, in order to
attack, on the facts..., the foundation must be the original programme (if capable of justification and
substantiation to show its validity and reliability as a contractual starting point) and its success will
similarly depend on the soundness of its revisions on the occurrence of every event, so as to be able to
provide a satisfactory and convincing demonstration of cause and effect”.
The ‘grey area’ and confusion appears to be due to the different directions given by the English and
Scottish courts in their approach to resolving concurrent delay. The decision in City Inns moves away from
critical path analysis and in my view is subjective but the judgement in Water Lilly sheds some light on the
situation and states that events should be analysed on a month by month basis.
12
John Barker Construction Ltd v London Portman Hotel Ltd (1996) in which J. Toulson stated that the architect did not carry out a
logical analysis of the impact which the relevant events claimed had or was likely to have on the Plaintiffs' planned programme.
13 Balfour Beatty v London Borough of Lambeth [2002] para 30
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“As ….a delay expert, one has to get a handle on what was delaying the project as it went along”.14
The judgement in Walter Lilly confirms that to prove cause and effect of sequential delay events, is to
demonstrate the impact of changes when the events occur on the accepted and updated programme. The
judgement acknowledges that the initial impact may change as the project develops (NB the earlier
judgement in Ascon15 also noted this) and that any predicted delay has to have a ‘reality check’ as to what
actually occurred but this should not prevent a delay in the assessment of an EOT to be awarded as the
contract timeframes intended.
“Therefore it is necessary to have regard to how long individual items actually took to perform and not
just have regard to what one party or the other at the time was saying it would take”.16
The predicted effects may change as the project develops but a robust time impact analysis and regularly
updated programme will also account for this. Mr J. Akenhead in Walter Lily affirmed this approach 17
“In the context of this contractual based approach to extension, one cannot therefore do a purely
retrospective exercise. What one can not do is to identify the last of a number of events which delayed
completion and then say it was that last event at the end which caused the overall delay to the Works.
One needs to consider what critically delayed the Works as they went along.”
It appears why many contact administrators appear reluctant to grant an EOT as changes occur and a ‘wait
and see’ approach has become normal, but hugely frustrating to Contractors as they cannot plan works for
the expected Completion Date and psychologically they are reporting progress negatively until a fair EOT
assessment is provided.
It is clear that the EOT mechanism in the contract should be speeded up and the success of progressive
contracts like the NEC, where prospective EOT awards are usually granted within the contractual
timeframes specified, has helped the construction industry and the success in terms of a lack of disputes
by way of a collective approach is evident.
A further legal hurdle, to overcome the delay of EOT awards, appears to be the foreseen embarrassment if
the predicted EOT position is different from than actual and thus the financial position of either party is

15 Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd [1999] para 95
16 J Akenhead -Walter Lilly v Mackay TCC (2012) para 378
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exaggerated because of this. As a recommendation, the lack of flexibility provided to contract

administrators for previously awarded EOT at completion should also be reflective of the facts if awards
are provided in good faith but later prove to be inaccurate.
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CONCURRENCY DELAY - Is A BUT FOR' Analysis The Legal Interpretation PDF

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CONCURRENCY DELAY - is a ‘BUT FOR’ analysis the Legal Interpretation?

WHAT IS CONCURRENT DELAY?

1 Walter Lilly v Mackay (2012) TCC

3 Delay and Disruption Protocol – K. Pickavance – 3rd Edition

At the end of week 1, progress was as planned, thus: -

Chart 2 - Henry Boot Construction v Malmaison Hotel

5 Steelwork Design 5 Steelwork Design

Chart 2 – Impacted Baseline Programme

ROYAL BROMPTON HOSPITAL

Chart 3 - Royal Brompton Hospital

8 Internal drainage & ducting

9 Insert Bolt Boxes

13 Blockwork to Floor Level

14 Roof & Wall Cladding

19 Completion & Handover

Planned by Asta Powerproject

Chart 3 – Impacted Contractor delay

Chart 4 - Royal Brompton Hospital

3 Revised Steelwork Procurement 3 Revised Steelwork Procurement

10 Internal drainage & ducting

13 Strip Bolt Boxes

15 Blockwork to Floor Level

16 Roof & Wall Cladding

21 Completion & Handover

Planned by Asta Powerproject

Chart 4 –Additional Employer delays in a period of existing Contractor delay

SUMMARY OF ROYAL BROMPTON HOSPITAL

7 Balfour Beatty Ltd v Chestermount Properties [1993] 32 Con LR 139

Chart 5 - Balfour Beatty v Chestermount Properties

Revised steelwork design (Employer Relevant

6 Steelwork Design Contractor Entitlement to an EoT

10 Internal drainage & ducting

11 Insert Bolt Boxes

13 Strip Bolt Boxes

15 Blockwork to Floor Level

16 Roof & Wall Cladding

21 Completion & Handover

Planned by Asta Powerproject

8 McAlpine Humberoak Ltd v McDermott International Inc. (No1) [1992]

Chart 6 - McAlpine Humberoak v McDermot International

10 Internal drainage & ducting

13 Strip Bolt Boxes

15 Blockwork to Floor Level

16 Roof & Wall Cladding

21 Completion & Handover

Planned by Asta Powerproject

Chart 4 –Employer delays in a period of existing contractor delay

SUMMARY OF MCALPINE V MCDERMOTT

CITY INNS v SHEPHERD

Lord Drummond Young concluded:

SUMMARY OF CITY INNS

9 City Inns v Shepherd OHCS [2007]

14 Walter Lilly v Mackay TCC [2012] para 392

exaggerated because of this. As a recommendation, the lack of flexibility provided to contract

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