Concurrent delay
Concurrent delay

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

  • Concurrent delay
  • When is concurrent delay relevant?
  • Defining concurrent delay
  • Must the delay events occur at the same time?
  • The importance of causation
  • Dominant cause approach
  • Judicial approach where there is concurrent delay
  • Apportionment approach
  • Confirmation of the Malmaison approach
  • Importance of contractual terms
  • More...

This Practice Note considers the meaning and relevance of concurrent delay on construction projects, contractual terms dealing with concurrent delay and the contractor’s entitlement to an extension of time and/or loss and expense where there is concurrent delay.

Concurrent delay describes the situation on a construction project which is suffering delay in which two or more independent events have occurred which, if either had occurred on its own, would have caused critical delay to the project. Typically, one of the events causing delay will be at the employer's risk (sometimes referred to as a ‘relevant event’), while the other will either be at the contractor's risk or will be a neutral event (ie it is at neither the contractor’s nor 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. Applying the normal test of ‘but for’ causation, neither event can be said to have caused the delay.

In summary, and as explained in more detail in this Practice Note:

  1. concurrent delay means ‘a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency’

  2. the delay events need not occur at the same time—it is the delaying effect of the two events which is relevant

  3. however, the

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