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INTRODUCTION
"Time is money" is a settled statement in the construction industry, which drives and
motivates every person engaged in an industry. The financial damages caused by project
delays are generally substantial and ascertaining apposite legal remedy to effectively
compensate for delays caused in projects is a vital aspect. In the recent years, there have
been frequent debates in the construction industry with regard to the issues and problems
involved in the concurrent delays.The issue involved in such delay is to determine the
contractor’s entitlement to extension of time as well as loss suffered from such delay caused
by the owner default; and the owner’s recovery of its actual delay or damages where the
contractor fails to complete its given work within stipulated period, due to the contractor’s
responsible delay that is concurrent to the owner caused delay. Till date there is no settled
legal principle to resolve the problems involved in concurrent delays due to the
consideration of interaction of many factors involved in different projects. Hence, the aim of
this paper is to provide a definition and an in-depth study of the concept of concurrent delay
through various case laws and also cover the aspects related to concurrent delays disputes.
DEFINITION
Case Laws in respect of concurrent delays and extension of time dealing with the
general principle and facts of delays
Claims in concurrent delays are argued as both a sword and shield in fighting delay claims.
There have been many cases which have covered the aspects of concurrency,
apportionment of delays and extension of time which are as follow:
In the instant case, Henry Boot contracted with Malmaison under a JCT Standard Form of
Building Contract 1980 for the construction of a hotel in Piccadilly, Manchester. The
contractor claimed an extension of time as a result of delay said to have been caused by
variations and late information.The employer argued that the alleged variations did not
cause any delay because they were not on the critical path and that the true cause of the
delay was other maters which were contractor-risk events. The contractor contended that
the matters pleaded by the employer are not within the jurisdiction of the arbitrator. Dyson J.
rejected the argument of the owner and held that:
“It is agreed that if there are two concurrent causes of delay, one of which is a relevant and
the other is not, then thecontractor is entitled to an extension of time for the period of delay
caused by the relevant event notwithstanding theconcurrent effect of the other event. Thus,
to take a simple example, if no work is possible on site for a week not onlybecause of
exceptionally inclement weather i.e. a relevant event but also because the contractor has a
shortage of labor i.e. 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 it 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 ground that the delay would have occurred in any event by
reason of the shortage of labor.”
SMITH V. THE UNITED STATES7
The government terminated a supply contract for failure to deliver in accordance with the
terms of the contract. The contractor contended that its failure to perform was the result of
delay and disruption caused by the government. However, the Court found that the
contractor had made no attempt to recognize and apportion the amount of delay, for which
it was responsible. It was held that:
“A contractor may not collect damages from the government due to delay where that
contractor was itself in a state of concurrent delay. Generally, courts will deny recovery
where the delays are ‘concurrent or intertwined’. Even where both parties are responsible
for delay, a contractor may not recover unless it is able to apportion the delay and expense
attributable to each party.”
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd. 8
To conclude the discussion on the concurrent delay in the construction work, it can be said
that the issues and problems involved in concurrent delays is complicated and difficult
one. Generally, claims in concurrent delay are contended as both a sword and a shield in
order to claim damages or extension of time or, both. But the viability and success of claims
or defense availed always depend on the facts, evidences and terms of the contract of each
and every case. Inference can be drawn from the judicial pronouncements which are helpful
in ascertaining and guiding in the decision of claims