CLJ 4 Barry Article

Concurrent Delay in Construction
Law: Lord Drummond Young’s

Volte Face
*
David Barry
Apportionment; Concurrent causes; Construction law; Delay; Extensions of
time; Scotland
“Chairephanes promises to the Eretrians that he will drive away the lake in Ptechae
and make it land”; so begins an ancient Greek construction contract.1
This contract, which was carved on a tablet of Pentelian marble in approximately
335BC, included a four-year contract period and an extension of time provision
in the event of war. Breaches of contract, such as a failure to achieve the completion
date, were specified to incur both material damages and the wrath of the gods
Apollo and Artemis! Even at this early stage of construction contracting, delay
was, therefore, a matter of significant legal importance.
Given that the construction industry has been concerned with contractual
completion dates and extension of time provisions for well over two millennia,
one might characterise the English common law system, its doctrine of stare decisis2
and its catalogue of judicial precedent as fairly recent developments. While the
law undoubtedly has the flexibility to adjust to reflect new social and political
realities, one might expect that where the issue that concerns is old, the courts’
jurisprudence will provide strong, and most importantly, consistent guidance.
Delay in construction is just such an established issue, and concurrent delay (or
contributory causation of delay) tends to be a common area of dispute on modern
construction projects. A review of the courts’ jurisprudence in respect of concurrent
delay reveals there is little in the way of authority to guide the parties as to
established law. Recently, however, what little guidance had been established in
the English courts has been significantly disturbed by a Scottish judgment, and
subsequent appeal majority opinion in the City Inn v Shepherd Construction case.3
Of course, while the judgments are persuasive rather than authoritative in English
law, Lord Drummond Young’s dicta have stimulated the debate on the whole issue
of concurrent delay.
This article seeks to examine the present position on concurrent delay in
construction law following the City Inn judgments and to provide some thoughts
as to where clarification or refinement may be needed.
*
MA, BSc, Dip Const Econ, GD Law Student.
1
“Agricultural Hydraulic Works in Ancient Greece”, D. Koutsoyiannis and A.N. Angelakis, Encyclopaedia of
Water Science, DOI: 10.1081/E-EWS 120020412. The tablet was discovered in Chalkis in 1860 and currently resides
at the Athens Archaeological Museum.
2
Translated as “to stand by decisions”, this refers to the doctrine of precedence.
3
City Inn Ltd v Shepherd Construction Ltd [2007] CSOH 190; [2008] B.L.R. 269, heard in the Scottish Outer
House Court of Session and on appeal in the Scottish Inner House Court of Sessions [2010] CSIH68.
2011 27 Const. L.J., Issue 3 © Thomson Reuters (Professional) UK Limited and Contributors 165
166 Construction Law Journal
Before moving to consider the legal definition of concurrent delay, it is important

to understand the practical context. Within almost every construction contract,
there will be a date specified by which practical completion4 of the works is to be
achieved. A contractor who fails to achieve this date may be liable for damages
(these may be liquidated,5 or actual). Delay to completion will be caused by an
event, the risk of which may be borne by the employer, or by the contractor.6 Many
of the standard forms of construction contract label employer-responsible events
as “relevant events”. Where a relevant event causes delay to completion, the
contract will usually provide for the completion date to be extended. This is
generally referred to as an extension of time (EOT) provision.
Concurrent delay refers to a situation where a delay to completion is caused by
two or more events. Where all of the causative events are the responsibility of one
party, the issue is of only academic interest. Where, however, the liability for
causative events is borne by different parties, disputes can and often do arise.
In English law, the two leading cases on concurrent delay are first instance
judgments. In Henry Boot v Malmaison, Dyson J. (as he then was) stated:
“It is agreed7 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. Thus, to take a simple
example, if no work is possible on a 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. He cannot
refuse to do so on the grounds that the delay would have occurred in any
event by reason of the shortage of labour.”8
4
Practical completion defines the date upon which the works/project can be occupied/used by the employer for
the purposes for which the project was intended.
5
Liquidated damages are a fixed sum established pre-contract that will be chargeable for every day/week of delay
for which the contractor is responsible. So long as the sum is derived from a genuine pre-estimate of actual damages
there will be no further need for the employer to prove the extent of the actual damages suffered in the event of delay.
6
Employer-responsibility delay events might include: failure to make site available, design changes, or unforeseen
ground conditions; contractor-responsibility delay events might include: insufficient plant and labour resources,
defective works, or inefficient working; delay events such as exceptionally inclement weather may be attributed to
either party, or sometimes shared.
7
A word of warning here is that the word “agreed” used in the opening line of this extract refers to a pre-trial
agreement between counsel, and it is therefore arguable that Dyson J. was simply explaining the practical consequences
of their agreement rather than deciding the matter himself through a judicial endorsement of that agreement. However,
it is noted that in Steria Ltd v Sigma Wireless Communications Ltd [2008] B.L.R. 79 QBD (TCC) at [131], H.H.
Judge Steven Davies said of Dyson J.’s reference to this agreement that, “the fact that he, as a judge with such wide
experience in the field, noted the agreement without adverse comment is a strong indication that he considered that
it correctly stated the position”.
8
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 Con. L.R. 32 QBD (TCC)at
[13].
2011 27 Const. L.J., Issue 3 © Thomson Reuters (Professional) UK Limited and Contributors
Concurrent Delay in Construction Law: Lord Drummond Young's Volte Face 167
Dyson J. thereby established that a “but-for” test of causation could not be used
to defeat an extension of time claim where there was contributory causation of
delay, which to a certain extent aligned this area of construction law with the law
on contributory negligence in tort.9
In a later first instance case, Royal Brompton Hospital, H.H. Judge Seymour
QC sought to clarify the limits of concurrent delay described by Dyson J. when
he stated:
“it is, I think, necessary to be clear what one means by events operating
concurrently. It does not mean, in my judgment, a situation in which, work
already being delayed, let it be supposed, 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. In such a situation, although there is a relevant event, the
completion of the works is not likely to be delayed thereby beyond the
Completion Date. The relevant event simply has no effect upon the completion
date. This situation obviously needs to be distinguished from a situation in
which, as it were, the works are proceeding in a regular fashion and on
programme, when two things happen, either of which, had it happened on its
own, would have caused delay, and one is a relevant event, which the other
is not. In such circumstances there is a real concurrency of causes of the delay.
It was circumstances such as these that Dyson J was concerned with in the
passage from his judgment in Henry Boot Construction.”10
The two circumstances H.H. Judge Seymour QC sought to distinguish can be
illustrated thus:
9
The Law Reform (Contributory Negligence) Act 1945 s.1 states, “Where any person suffers damage as the result
partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall
not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect
thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in
the responsibility for the damage: Provided that—(a) this subsection shall not operate to defeat any defence arising
under a contract; (b) where any contract or enactment providing for the limitation of liability is applicable to the
claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum
limit so applicable”.
10
Royal Brompton Hospital NHS Trust v Hammond (No. 7) [2001] EWCA Civ 206; 76 Con. L.R. 148 at [31].
In effect, H.H. Judge Seymour QC reintroduced the classic “but-for” defence

of causation in respect of delays that, while operating in parallel, arose in sequence
as opposed to simultaneously. This is perhaps an unsurprising conclusion insofar
as the EOT clause he was considering in that case required a prospective assessment
of the likely delay to completion caused by the subject relevant event. The assessor
was, therefore, required to consider whether the completion date was already in
delay as a consequence of pre-existing delay events, and if so delayed then the
assessment of subsequent events would focus only on whether any supplemental
delay was incurred.
H.H. Judge Seymour QC’s decision had the effect of limiting the scope of
concurrent delay to events that had all of the following characteristics:
1. they caused (or were likely to cause) delay to completion;
2. they affected the project at the same time; and
3. they arose simultaneously.
On this narrow definition of what constitutes a truly concurrent delay in construction
law, the potential for encountering such concurrent delay appeared to be minimal,
and indeed it prompted the Society of Construction Law (SCL) in its Delay and
Disruption Protocol to declare that, “True concurrent delay will be a rare
occurrence” and to define concurrent delay thus:
“the occurrence of two or more delay events at the same time, one an employer
risk event, the other a contractor risk event and the effects of which are felt
at the same time.”11
The key characteristic of concurrent delay was therefore held to be the degree of
simultaneousness in the commencement of the two (or more) delaying events.
For a while it seemed there was some general consensus in English law as to
the definition of concurrent delay, evidenced by the lack of unfavourable
commentary on the Brompton Hospital judgment and the unofficial endorsement
thereof by the SCL’s Delay and Disruption Protocol drafting committee. Of course,
11
The Society of Construction Law, Delay and Disruption Protocol, 2002, s.1.4.4.
the narrowness of the definition meant that the phenomenon of concurrent delay
would be so rare that it is probably fair to say that interest in the subject waned
considerably.
However, in the Scottish case of City Inn v Shepherd Construction,12 Lord
Drummond Young delivered a judgment which effectively turned the whole subject
of concurrent delay in construction law on its head.
The key components of Lord Drummond Young’s judgment which this article
critically assesses are as follows:
1. the definition of concurrent delay in law;
2. the legal relevance of the dominant cause approach; and
3. the legal basis for apportionment.
Definition of concurrent delay in law

Lord Drummond Young doubted whether H.H. Judge Seymour QC’s definition
of true concurrent delay in Brompton Hospital was sufficiently wide13 and stated:
“It seems to turn upon the question of whether the shortage of labour and the
relevant event occurred simultaneously; or at least it assumes that the shortage
of labour and the relevant event did not significantly predate the relevant
event. That, however, seems to me to be an arbitrary criterion. It should not
matter whether shortage of labour developed, for example, two days before
or two days after the start of a substantial period of inclement weather; in
either case the two matters operate concurrently to delay completion of the
works.”14
Later in the judgment, Lord Drummond Young converted this critique into his
own definition of concurrent delay when he stated:
“Where there is true concurrency between a relevant event and a contractor
default, in the sense that both existed simultaneously, regardless of which
started first … ”15
At first glance, Lord Drummond Young’s judgment appears simply to widen and
clarify H.H. Judge Seymour QC’s definition of what constitutes a concurrent delay
to include events which arose in close proximity in time, as the following graphic
illustrates:
12
[2007] CSOH 190.
13
SCL, Delay and Disruption Protocol, 2002.
14
City Inn Ltd v Shepherd Construction Ltd [2007] CSOH 190 at [16].
15
City Inn [2007] CSOH 190 at [18].
However, an examination of the detail of the judgment reveals that Lord Drummond
Young considered that only the delay impact of the events must be concurrent. He
considered 13 separate delay events to be concurrent (11 were the responsibility
of the employer and 2 the responsibility of the contractor) and he found each of
them to have delayed completion to varying degrees. It is also clear from his
decision that he gave little or no weight in his consideration to the dates at which
the competing events arose. It is implicit in the detail of the judgment that Lord
Drummond Young’s analysis of delay to completion was in fact an assessment of
the hypothetical delay which would have been caused to the completion date by
each of the 13 events had they occurred independently of each other. The following
graphic illustrates what, arguably, is the principle under which he determined the
existence of concurrent delay:
With respect, it is arguable that Lord Drummond Young’s conclusion is inconsistent

with the relevant clause in the contract, which stated:
“If, in the opinion of the Architect … any of the events which are stated by
the Contractor to be the cause of the delay is a Relevant Event and the
completion of the Works is likely to be delayed thereby beyond the
Completion Date the Architect shall in writing to the Contractor give an

extension of time by fixing such later date as the Completion Date as he then
estimates to be fair and reasonable.”1617
Assuming the incidence of a relevant event has been determined, the next step in
the assessment is an appraisal of the likely effect the event has upon “the completion
of the Works”. Lord Drummond Young, however, appears to have assessed the
likely effect that the event would have on the “Completion Date”. These dates are
not the same. One is notional and the other is fixed by contract. The date upon
which the completion of the Works is to be achieved is a moveable feast and is
expected to fluctuate as the work proceeds and events are encountered, whereas
the Completion Date is a specific date from the contract.18 It is only after the likely
effect of the delay event on the completion of the Works has been determined that
the assessor should take into account the Completion Date. If the completion of
the Works is delayed by the relevant event beyond the specific contract Completion
Date, then an EOT will be required.
Whenever the assessor is moved to making an assessment of the likely effect
of a relevant event, he will need to establish the contemporaneous date upon which
the completion of Works is likely to be achieved. This date will reflect the historic
and future influences of both progress achieved and known delay events on the
status of the works. This, it is submitted, is exactly what H.H. Judge Seymour QC
was considering when he described:
“a situation in which, work already being delayed, let it be supposed, 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. In such a situation, although there is a
relevant event, the completion of the works is not likely to be delayed thereby
beyond the Completion Date. The relevant event simply has no effect upon
the completion date.”19
That the assessment must be carried out in such a contemporaneous context taking
account of pre-existing delays is also evident from Colman J.’s judgment in Balfour
Beatty v Chestermount, where he stated:
“it is for the architect … to decide whether an adjustment of the completion
date is fair and reasonable having regard to the incidence of relevant events.
Fundamental to this exercise is an assessment of whether the relevant event
occurring during a period of culpable delay has caused delay to the completion
of the works and, if so, how much delay.”20
16
Clause 25.3.1 of the contract, as cited by Lord Drummond Young in City Inn [2007] CSOH 190 at [8].
17
This was a very typical EOT clause from a widely used standard form of contract, and was almost identical to
the extension of time clauses considered in both the Malmaison and Brompton Hospital judgments discussed earlier.
18
Which may have been adjusted by the operation of the extension of time clause.
19
Royal Brompton Hospital NHS Trust v Hammond (No. 7) (2001) 76 Con. L.R. 148 at [31].
20
Balfour Beatty Building Ltd v Chestermount Properties Ltd (1993) 62 B.L.R. 1 at 34.
Therefore, while Lord Drummond Young concludes that the dates on which the
competing events arose “should not matter”, it is submitted that the proper
construction of the above (standard) EOT clause makes this a vital factor in the
assessment, because the later event may have no (or a reduced) impact on the
completion of the Works due to the pre-existence and influence of the earlier event.
If that is so, then true concurrent delay can only be present where there is a
significant degree of simultaneousness in the commencement of the competing
events.
The legal relevance of the dominant cause approach

Once the court or assessor has determined that a situation of concurrent delay has
been encountered (and where the responsibility for the causative events does not
rest with just one of the parties) the next problem requiring consideration is how
the liability for the delay and damages caused by these events should be assigned.
The dominant cause approach requires the assessor to examine the competing
causes of delay to determine whether one was more influential than the others in
causing the delay to completion, and if it is so determined then all of the delay is
attributed to this “dominant” event.
The authorities for this approach come from a long line of marine insurance
cases. In Leyland Shipping v Norwich Union,21 a ship which was badly damaged
by a torpedo succeeded in limping back to port where, in the words of Lord Finlay
L.C., she “would have been saved if she had been allowed to stay there”.22 However,
a severe storm arose which caused the ship to bump against the harbour walls, and
the port authorities fearing that she might sink insisted she be moved outside the
port. In her new berth, during continuing high winds and seas, the ship was regularly
thrust aground at low tide. This caused her already damaged bulkhead to weaken
further and she sank and was a total loss. The company insuring the ship insisted
that the loss was caused by the torpedo damage (an uninsured event), whereas the
shipowners claimed that the storm and subsequent groundings (which are “perils
of the sea” and covered by the insurance policy) were novus actus interveniens
that should be treated as the proxima causa. Interestingly, their Lordships did not
consider apportioning the damages between the competing causes, and Lord
Dunedin stated that:
“the moment that the two [policy] clauses have to be construed together it
becomes vital to determine under which expression it falls. The solution will
always lie in settling as a question of fact which of the two causes was what
I will venture to call (though I shrink from the multiplication of epithets) the
dominant cause of the two.”23
Their Lordships, upholding the judgments of the lower courts, considered that the
dominant cause of the loss was the torpedo, and the shipowners could therefore
not recover any insurance monies. Lord Shaw provided some guidance as to how
dominant cause is determined:
21
Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd [1918] A.C. 350 HL.
22
Per Lord Finlay L.C. in Leyland Shipping [1918] A.C. 350 at 354.
23
Leyland Shipping [1918] A.C. 350 at 363.
“To treat proxima causa as the cause which is the nearest in time is out of the
question … The cause which is truly proximate is that which is proximate in
efficiency … Where various factors are concurrent, and one has to be selected,
the matter is determined as one of fact, and the choice falls upon the one to
which may be variously ascribed the qualities of reality, predominance,
efficiency.”24
Notably, in this and other insurance cases,25 the court felt that it must select one
of the competing causes to be dominant, even when the causative potency of the
competing events were approximately equal, which, it is submitted, rather
undermines the core principle of the approach.
Happily, construction law appears to have adopted the dominant cause approach
in a more practical manner. In City Inn, Lord Drummond Young stated:
“I agree that it may be possible to show that either a relevant event or a
contractor’s risk event is the dominant cause of that delay, and in such case
that event should be treated as the cause of the delay.”26
Moreover, in John Doyle v Laing, Lord Macfayden stated:
“If an item of loss results from concurrent causes, and one of the causes can
be identified as the proximate or dominant cause of the loss, it will be treated
as the operative cause, and the person responsible for it will be responsible
for the loss.”27
Importantly, however, in neither of the above cases was the court willing to ascribe
dominance where it could not discern it, with Lord Drummond Young stating:
“In my opinion none of the causes of delay can be regarded as a ‘dominant’
cause; each of them had a significant effect on the failure to complete
timeously.”28
It is submitted that Lord Drummond Young’s conclusion as to the application of
the dominant cause approach when determining liability for periods of concurrent
delay is correct, fair and reasonable; i.e. only apply it where dominance is evident.
That, however, leaves the problem of what to do when there is no discernible
dominance between the competing concurrent delay events. In City Inn, Lord
Drummond Young resolved this problem through the application of apportionment.
The legal basis for apportionment

Historically in the law of tort, contributory negligence by a claimant to his or her
loss would automatically disentitle him or her from recovering damages from a
negligent defendant.29 This was considered to be unfair and was changed with the
introduction of the Law Reform (Contributory Negligence) Act 1945, whereby
24
Leyland Shipping [1918] A.C. 350 at 369 and 370.
25
Smith Hogg & Co Ltd v Black Sea & Baltic General Insurance Co Ltd [1940] A.C. 997 HL; Reischer v Borwick
[1894] 2 Q.B. 548 CA.
26
27
John Doyle Construction Ltd v Laing Management (Scotland) Ltd, 2004 S.C. 713 at 721.
28
29
See Butterfield v Forrester (1809) 11 East 60; 103 E.R. 926 Court of King’s Bench; and Davies v Mann (1842)
10 M. & W. 546; 152 E.R. 588 Court of Exchequer.
damages could now be reduced to reflect the contribution made by the claimant’s
own negligence. This in effect provided for the apportionment of fault (and, by
association, damages) amongst the parties.
However, given that the 1945 Act is specifically said to “not operate to defeat
any defence under a contract”,30 one must question whether the apportionment of
fault between two parties is applicable to a claim under a construction contract
concerning concurrent delay.
The courts have considered this question on a number of occasions, and three
separate categories of situation have been distinguished, namely, where:
“i. The defendant is in breach of a strict contractual duty;
ii. The defendant is in breach of a duty of care imposed by the contract.
There is no corresponding duty in tort;
iii. The defendant is in breach of a contractual duty of care and a duty
of care in tort.”31
In Forsikringsaktieselskapet Vesta v Butcher, Hobhouse J. held that apportionment
was an option that was open to the courts in category iii situations, stating:
“there is independently of contract a status or common law relationship which
exists between the parties and which can then give rise to tortious liabilities
which fall to be adjusted in accordance with the Act of 1945.”32
However, in Barclays Bank v Fairclough Homes,33 it was held that the 1945 Act
did not apply to category i cases. There is no clear decision in respect of category
ii, albeit the ratio in Fairclough Homes in respect of category i would suggest that
the Act would also not apply.34
In its 1993 report entitled Contributory Negligence as a Defence in Contract,
the Law Commission stated that:
“apportionment of the plaintiff’s damages on the ground of contributory
negligence should be available in actions in contract where the defendant is
in breach of an express or implied contractual duty to take reasonable care
… but not where he is in breach of a contractual term which imposes a higher
level of duty (which we refer to as ‘strict’).”35
The Law Commission stated that it was convinced that “apportionment in cases
involving breach of a strict duty would be undesirable in practice”.36
There is, therefore, some authoritative consensus that the Contributory
Negligence Act (with its mechanism of apportionment) shall only apply to contracts
where the cause of action is capable of being framed both in contract and in tort.
30
Law Reform (Contributory Negligence) Act 1945 s.1(1)(a).
31
H.G. Beale, W.D. Bishop and M.P. Furmston, Contract: Cases and Materials, 5th edn (Oxford: OUP, 2007),
Ch.22, p.657.
32
Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All E.R. 488 QBD (Comm) at 509.
33
Barclays Bank Plc v Fairclough Building Ltd (No.1) [1995] 1 All E.R. 289 CA (Civ Div).
34
The ratio being that fault is defined in the Law Reform (Contributory Negligence) Act 1945 s.4 as acts of
“negligence, breach of statutory duty or other act or omission giving rise to a liability in tort”. Since category ii
concerns breaches where there is no duty in tort, it is likely that the Act would not be applicable to category ii.
35
Law Commission, Contributory Negligence as a defence in Contract Law (HMSO, 1993) Law Com. No.219.
36
Contributory Negligence as a defence in Contract Law, 1993, Law Com. No.219.
Where the events causing concurrent delay arise from a failure to take reasonable
care, apportionment is, therefore, a valid mechanism by which the respective
liabilities of the parties can be resolved. But what of the other, more common,
circumstance where a non-tortious act or omission by one party causes delay which
is concurrent with events for which the other party is liable?
This was the very issue that concerned Lord Drummond Young in City Inn,
where he was required to construe cl.25.3.1 of the subject contract, which again
provided:
“If, in the opinion of the Architect … any of the events which are stated by
the Contractor to be the cause of the delay is a Relevant Event and the
completion of the Works is likely to be delayed thereby beyond the
Completion Date the Architect shall in writing to the Contractor give an
extension of time by fixing such later date as the Completion Date as he then
estimates to be fair and reasonable.”37
His construction of this clause was stated in the following terms:
“What is required by clause 25 is that the architect should exercise his
judgment to determine the extent to which completion has been delayed by
relevant events. The architect must make a determination on a fair and
reasonable basis. Where there is true concurrency between a relevant event
and a contractor default, in the sense that both existed simultaneously,
regardless of which started first, it may be appropriate to apportion
responsibility for the delay between the two causes; obviously, however, the
basis for such apportionment must be fair and reasonable.”
Unfortunately, Lord Drummond Young’s use of the words “it may be appropriate
to apportion responsibility” undermines the forcefulness of his conclusion. When
it is appropriate to do so remains unclear.
It is fair to say that his decision to apportion (when dominance cannot be
discerned) is attractive because it invokes objectivity, fairness and reasonableness.
However, given the judgment in Barclays Bank v Fairclough Homes and the
sentiments of the Law Commission (discussed above) one wonders what authority
or legal basis there is for the decision Lord Drummond Young has reached.
Indeed, Keating on Construction Contracts describes Lord Drummond Young’s
decision to apportion as “radical”,38 and states, “It is suggested that in approaching
the matter in this way the court placed too great a weight on the words ‘fair and
reasonable’”.39 It is submitted that Keating’s analysis is correct and that these words
from cl.25 pertain specifically to the fact that an assessor charged with making an
estimate of a likely delay to completion of the Works (which may be a distant
future point in time) should do so on a fair and reasonable basis.
37
Clause 25.3.1 of the contract, as cited by Lord Drummond Young in City Inn Ltd v Shepherd Construction Ltd
[2007] CSOH 190 at [8].
38
Keating on Construction Contracts, 1st Supplement to the 8th Edition (London: Sweet & Maxwell, 2008),
para.8-021.
39
Keating on Construction Contracts, 1st Supplement, 2008.
Lord Drummond Young does, however, cite the American case of Chas. I.
Cunningham Co.40 in support of his decision to apportion, where the Board of
Contract Appeals held that:
“Where a contractor finishes late partly because of a cause that is excusable
under this provision and partly because of a cause that is not, it is the duty of
the contracting officer to make, if at all feasible, a fair apportionment … the
contractor is entitled to an extension of time for so much of the ultimate delay
in completion as was the result or consequence of that [excusable] event,
notwithstanding that the progress of the work may also have been slowed
down or halted by … some other inexcusable omission on the part of the
contractor.”41
The problem with Lord Drummond Young’s reliance upon this dictum from the
Cunningham judgment is that (in one commentator’s words):
“it was expressly based upon the Supreme Court case of Robinson42 …
Accordingly, it relates to sequential delays and not concurrent delays and
supports the exercise which is perhaps inappropriately termed ‘apportionment’
of picking out from a series of successive delay periods those which are
wholly attributable to one or other party.”43
Consequently, it is submitted that the apportionment of liability for concurrent
delay is not well founded in law,44 because it is unsupported by either statute or
authority, and it requires an unnatural interpretation of the subject (typical) EOT
contract clause.45
But what then is the correct approach in law? The case of Steria v Sigma46 may
provide the answer. Here, H.H. Judge Stephen Davies, drawing on the Malmaison
judgment47 (discussed above) and the views of the learned editors of Keating on
Construction Contracts,48 held that, where events have equal causative potency,
the contractor should be entitled to an extension of time. In other words, the
employer-liable event would in effect “trump” the contractor-liable event. It is
further submitted that, since it is persistently the employer which puts forth the
construction contract for agreement, the doctrine of contra proferentem49 supports
H.H. Judge Stephen Davies’ determination.
40
IBCA 60, 57-2 BCA P1541 (1957).
41
42
Robinson v United States, 261 U.S. 486; 43 S.Ct. 420; 67 L.Ed. 760 (1923).
43
B. McAdam, “Apportionment and the common law: has City Inn got it wrong?” (2009) 25 Const. L.J. 79.
44
Except in circumstances where the causes of the delay can be framed in both tort and contract, as discussed
above.
45
Discussed above.
46
Steria Ltd v Sigma Wireless Communications Ltd [2008] B.L.R. 79.
47
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd. (1999) 70 Con. L.R. 32 at [13].
48
Keating on Construction Contracts, 8th edn (London: Sweet & Maxwell, 2008), para.8-021 states, “It now
appears to be accepted that a contractor is entitled to an extension of time notwithstanding the matter relied upon by
the contractor is not the dominant cause of delay, provided only that it has equal ‘causative potency’ with all other
matters causing delay [the footnote refers to Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester)
Ltd (1999) 70 Con. L.R. 32]. The rationale for such an approach is that where the parties have expressly provided in
their contract for an extension of time caused by certain events, the parties must be taken to have contemplated that
there could be more than one effective cause of delay (one of which would not qualify for an extension of time) but
nevertheless by their express words agreed that in such circumstances the contractor is entitled to an extension of
time for an effective cause of delay falling within the relevant contractual provision.”
49
The principle that ambiguities in documents should be construed against the drafter—Oxford Dictionary of Law.
Conclusion
Lord Drummond Young’s judgment in City Inn has delivered two potentially
significant conclusions in respect of concurrent delay (or contributory causation
of delay) in construction law. These are:
1. The definition of what constitutes a concurrent delay has been
enormously widened and now appears to comprise all delaying events
which would (independently of other events) have had an impact
upon the Completion Date in the contract.
2. Where concurrent delay is encountered and it is not possible to
distinguish one of the delays as dominant in its causative potency,
the delay to completion should be apportioned on a fair and
reasonable basis.
While it may be argued that H.H. Judge Seymour QC’s definition of concurrent
delay in Royal Brompton Hospital is so narrow as to be of little effect, Lord
Drummond Young’s definition may be said to have achieved the opposite
extreme—since it effectively ensures that almost all50 delaying events encountered
on a project will be considered as being a contributory cause of delay to the
Completion Date. Moreover, it is submitted that Lord Drummond Young’s
construction of the subject (and typical) EOT contract clause, by which he
concluded that, when seeking to determine the existence of concurrent delay, the
dates upon which the competing delay events arose “should not matter”, is incorrect.
The subject contract clause in fact makes this a vital factor in the EOT assessment.
In circumstances where concurrent delay is encountered (regardless of whichever
definition is used), Lord Drummond Young’s dicta establish that liability will be
determined using a two-stage approach: one first determines whether any of the
competing events is dominant (in its causative potency), and, where so adjudged,
such event will be held to be the cause of the entire period of concurrent delay;
secondly, if no relative dominance between the competing events can be discerned,
the assessor should apportion the liability for the period of concurrent delay on a
fair and reasonable basis.
It is submitted that Lord Drummond Young’s first stage (the application of the
dominant cause approach) is correct in law, since it is clear that all of the relevant
authorities point that way.
While Lord Drummond Young’s second stage (the apportionment of liability
and damages when a dominant cause is not discernible) is attractive from the
perspectives of reasonableness and practicability, it is submitted that this approach
is not well founded in law,51 because it is unsupported by either statute or authority,
and it requires an unnatural interpretation of the subject EOT contract clause.
However, it is recommended that those responsible in the industry for the drafting
of contracts ought to consider giving legal effect to Lord Drummond Young’s
50
Only delay events that, when analysed independently of other events, did not cause a likely delay to the Completion
Date would fail to pass Lord Drummond Young’s test for concurrent delay.
51
Except in circumstances where the causes of the delay can be framed in both tort and contract, as discussed
above.
suggested apportionment approach through the re-drafting of the standard EOT

clauses. Alternatively, the legislature might wish to provide the necessary legal
foundation for the use of apportionment in construction contracts through statute.
Notwithstanding such potential developments, it is submitted that the presently
correct approach in law (to determining liability for periods of concurrent delays
caused by events where no dominant cause is discernible) is that confirmed in
Steria v Sigma,52 namely that the contractor should be entitled to a full EOT.
Lord Drummond Young’s judgment in City Inn has undoubtedly stimulated the
debate around concurrent delay in construction law, and an English jurisdiction
case that is required to confront these issues square-on is awaited by the industry
with great interest.
52
Steria Ltd v Sigma Wireless Communications Ltd [2008] B.L.R. 79.

CLJ 4 Barry Article

Caricato da

Informazioni sul documento

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

CLJ 4 Barry Article

Caricato da

Copyright:

Formati disponibili

Concurrent Delay in Construction

Law: Lord Drummond Young’s

Before moving to consider the legal definition of concurrent delay, it is important

In effect, H.H. Judge Seymour QC reintroduced the classic “but-for” defence

Definition of concurrent delay in law

With respect, it is arguable that Lord Drummond Young’s conclusion is inconsistent

Completion Date the Architect shall in writing to the Contractor give an

The legal relevance of the dominant cause approach

The legal basis for apportionment

suggested apportionment approach through the re-drafting of the standard EOT

Potrebbero piacerti anche