Concurrent delay
Concurrent delay

The following Construction guidance note provides comprehensive and up to date legal information covering:

  • Concurrent delay
  • What is concurrent delay?
  • Why is concurrent delay relevant?
  • What do the standard form contracts say about concurrent delay?
  • Bespoke clauses
  • Techniques employed for ascertaining liability in cases of concurrent delay
  • The current approach to concurrent delay in English law
  • The prevention principle and concurrent delay

This Practice Note examines the situation whereby two or more competing causes of delay (independent of each other) arise on a construction project, and what effect this has in terms of the parties' abilities to seek remedies for the consequences of such delay. Concurrent delay can be used in circumstances where a project is in delay in order for the employer to recover liquidated damages, or for the contractor to assert an entitlement to extension of time and/or losses or damages arising from the delay. See also Extensions of time under construction contracts.

What is concurrent delay?

Concurrent delay describes the situation on a project which is suffering delay in which two or more independent events have occurred which, if either had occurred on their own, would have caused delay to the project.

Typically, one of the events causing delay will be at the employer's risk, whilst the other will either be at the contractor's risk or will be a neutral event (ie it is at neither the contractor not the employer’s risk, such as adverse weather). Such delays may occur at exactly the same time (although this is rare) or they may overlap to some degree.

Although the concept appears to be straightforward, the English courts have had trouble in providing an accurate formulation to apply to such claims arising out of construction projects. This appears to be primarily due to the fact that, where delays were caused by both parties, it seems unfair that a party should be able to successfully claim compensation for the consequences of the delay when, had the other party not been at fault, the delay