- When building or engineering contracts fall into delay it is
often asserted by one party or the other that there are concurrent
causes of this delay. It is easy to see why this is so.
- Suppose that the Employer has been at fault perhaps by
providing necessary information late or in a piecemeal fashion.
Suppose also, however, that the Contractor has performed poorly,
being disorganised or lacking labour resources on site. Clearly,
the Employer will be unhappy about having to pay loss and expense
in such circumstances or foregoing his right to claim liquidated
damages for any delay.
- However, the Contractor may also be unhappy. He may have been
at fault but he may also have perfectly sound grievances in
relation to the late provision of the information. Why should he
have to pay liquidated damages? Why, also, should his preliminary
and other resources be prolonged on site without additional
- So it is easy to see why concurrency is so often asserted.
However, the burden of my argument will be this that concurrency,
although often asserted, is rarely proved. Indeed, in my view,
concurrency is a most unlikely finding to be made by any Court or
by any Arbitrator or Adjudicator properly applying the law.
- To understand why this is so, one has to go back to the
beginning. The beginning is, in this context, the concept of
- There are two particular features relating to causation which
make this a difficult topic in the context of construction
- The first is that where delay occurs each party may have a
claim arising out of this delay against the other. The Contractor
will be asserting that the delay is caused by the Employer and the
Employer will be saying that the delay is caused by the Contractor.
However, one has to arrive at an approach to causation which does
justice to both of these contentions.
- The second, obvious, difficulty in relation to causation in
construction contracts is that the issue is often factually
complex. There may be many events said to cause delays. Each of
these may impact upon a myriad of activities. By the same token, an
event occurring at one time may give rise to delay much later or
not at all.
- In this context, Keating on Building Contracts at paragraph
8-26 suggests that there are three possible approaches to causation
in the sort of situation which I have postulated where each party
under the contract has a potential delay related claim against the
- The first is described as “the Devlin approach”, a reference to
a decision of Mr. Justice Devlin as he then was in Heskell v
Continental Express Limited  1 All England 1033. The approach
“If a breach of contract
is one of two causes of a loss, both causes co-operating and both
of approximately equal efficacy, the breach is sufficient to carry
judgment for the loss.....”
- However, this approach is obviously unworkable in a
construction contract context. The difficulty is that it must be
applied to both the claim of the contractor for loss and expense or
damages and the counterclaim of the Employer for liquidated
damages. In those circumstances, one could have the absurd position
that the Contractor’s claim for direct loss and expense succeeded
in relation to a period of delay and the Employer’s claim for
liquidated damages succeeded in respect of exactly the same period
- The second possible approach is described as “the burden of
proof approach”. This is said to be as follows:
“If part of the damage is shown to be due to a breach of
contract by the Claimant, the Claimant must show how much of the
damage is caused otherwise then by his breach of contract, failing
which he can recover nominal damages only....”
- Again, this approach founders when one considers the fact that
there are two claims being made. The logical consequence, the
obverse of the Devlin position, is that both the claim for loss and
expense and the counterclaim for LADs would fail.
- So one is left with the so called “dominant cause approach”.
This is defined as follows:
“If there are two causes, one the contractual responsibility
of the Defendants and the other the contractual responsibility of
the Claimant, the Claimant succeeds if he establishes that the
cause for which the Defendant is responsible is the effective,
- This approach has the great advantage that it can be applied
equally to both claim and counterclaim. There can only be one
dominant cause of any particular period of delay. If the dominant
cause is the contractual responsibility of the Employer, the
Contractor gets loss and expense and does not pay liquidated
damages. If the dominant cause is the contractual responsibility of
the Contractor, his claim for loss and expense fails and he must
pay liquidated damages for the period of delay.
The approach in practice: Balfour Beatty v
- There is in fact precious little authority as to how these
difficult questions should be approached. That is, no doubt, why
the learned editors of Keating say that the law is unclear.
- However, the nearest that one gets to any statement of a
general approach is the decision of the Commercial Court in Balfour
Beatty v Chestermount  62 BLR 1.
- That said, even this case is not directly on point. The Court
was not immediately concerned with issues of causation and
concurrency. In fact, the Court was dealing with two issues. One
related to whether an Architect under a JCT Form of Contract could
grant an extension of time for the completion of the Works in
respect of a Relevant Event occurring during a period of culpable
- The more pertinent issue considered by the Court in Balfour
Beatty, for present purposes, was whether any such extension of
time should be awarded on a “gross” or a “net” basis. This was what
used to be known as the “colour of the front door” argument. In
other words, the Contractor has overshot completion by 6 months. He
is about to complete when the Architect says that he wants to
change the paint colour on the front door. This causes one day’s
delay while the new paint is sourced and applied. Does the
Contractor get one day’s extension of time or six months and one
day extension of time? The argument for the latter being that
whatever else had happened he could not have completed any earlier
because he only received the instruction six months after the
contractual completion date.
- The Commercial Court, not surprisingly, gave short shrift to
this argument and concluded that the extension of time must be on a
“net” basis i.e. in the circumstances mentioned above one day
rather than six months and one day.
- However, the Court gave some general guidance as to how
extensions of time should be considered. In particular at page 25
it was said that:
“The underlying objective is to arrive at the aggregate
period of time within which the Contract Works as ultimately
defined ought to have been completed having regard to the incidence
of non-contractor’s risk events and to calculate the excess time if
any, over that period, which the Contractor took to complete the
Works. In essence, the Architect is concerned to arrive at an
aggregate period for completion of the contractual works, having
regard to the occurrence of non-contractor’s risks events and to
calculate the extent to which the completion of the Works has
exceeded that period.....”
- Similarly at page 29 it was said that:
“(The Architect’s) objective must be the same: to assess whether
any of the relevant events has caused delay to the progress of the
Works and, if so, how much.....”
- It seems to me that Balfour Beatty provides some support for
the dominant cause approach identified above. In assessing events
which caused delay, the Holy Grail is to identify which is the
event or combination of events which have been the critical or
dominant or essential cause of delay.
- Against that background, one then looks to see what room there
is for the notion of concurrency.
- Not surprisingly, there is not really much room. To decide that
there is concurrency is to abandon the search for the Holy Grail.
Putting the matter another way, the Court simply throws up its
hands and says that it is really too difficult to identify what did
cause delay to the project in question. That is not a happy
conclusion to reach.
- Thus, in my view, for concurrency to arise there must be two
events which cause a delay which precisely and entirely
- For example, the Employer might fail to give possession of a
site for the first week of the Contract. However, during this same
week it may be that the Contractor has no men or materials
available and so could not progress the Works in any event.
- However, although it is possible to think of theoretical
situations of concurrency they are, in my experience, rare in
Conceptual difficulties with concurrency
- Moreover, there are other reasons why Tribunals will be slow to
make findings of concurrency.
- Taking the situation postulated above and assuming that one has
a JCT Building Contract the Contractor would not, it may be said,
be entitled to either extension of time or direct loss and/or
- As to the former, the Architect could not be satisfied in the
words of Clause 188.8.131.52 that "the completion of the Works is
likely to be delayed thereby beyond the Completion
Date..." (emphasis supplied).
- As to loss and expense the Architect has to be satisfied under
Clause 26.1 that the disruption of the regular progress of the
Works, and the consequential loss and expense, are “due
to” the “matter” specified by the Contractor.
- So, it may be said, the Contractor fails both in respect of
time and money. However, a difficulty then arises.
- The general principle is that if an Employer prevents the
completion of the Works as, for example, by failing to give
possession of the site, he loses his right to claim liquidated
damages for non-completion on time for he “cannot insist on a
condition if it is his own fault that the condition has not been
fulfilled”: see Amalgamated Building Contractors Limited v
Waltham Holy Cross UDC  2 All England 452 at 455.
- Furthermore, this rule probably applies even if the Contractor
has by his own delays disabled himself from completing by the due
date: see SMK Cabinets v Hili Modern Electrics  VR
- There can, in the circumstances posited above, be no
possibility of the liquidated damages regime being preserved by a
valid extension of time since, ex-hypothesi, there is no scope for
such an extension of time to be given.
- Thus, a finding of concurrency is unattractive for two
- The Tribunal, rather than making a real determination, says
that this determination is too difficult to make.
- The extension of time provision, however elaborate and
sophisticated, becomes impossible to operate and the right to claim
liquidated damages goes.
- Given these factors, it is perhaps not surprising that the
guidance available from the authorities on concurrency is very
- In Henry Boot Construction (UK) Limited v Malmaison
Hotel 70 Con LR 32 Dyson J. (as he then was) was concerned with
a jurisdictional challenge to an Arbitrator. In the Arbitration,
the Contractor was claiming an extension of time on the basis of
various events. The Employer wished to challenge this claim by
advancing both a negative and a positive case. The negative case
was that the events relied on by the Contractor had not caused the
alleged or any delay. The positive case was that delay had in fact
been caused by other events. The Contractor argued that it was not
within the jurisdiction of the Arbitrator to consider this positive
case and that he was only entitled to consider the events put
before him by the Contractor. This proposition was rejected both by
the Arbitrator and the Court.
- It is important to bear this in mind when considering the
passage at paragraph 13 of the Judgment dealing with concurrency,
in which Dyson J. stated:
“....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. Thus, to take a simple
example, if no work is possible on our 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
- As is clear from the above passage this was a concession and,
furthermore, it was a concession in relation to an issue which did
not directly arise before the Court. Thus, these observations,
notwithstanding that they came from Dyson J., need to be approached
with some caution.
- The other potentially relevant authority is Royal Brompton
Hospital NHS Trust v Hammond & Others (No. 7)  76 Con
LR. This was a decision of his Honour Judge Seymour QC, as he then
was. Whilst, at page 174, Judge Seymour referred to and followed
what Dyson J. had said in Henry Boot he made clear in the preceding
passage that true concurrency was unlikely to be found very
“...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
‘the completion of the
works is not likely to be delayed thereby beyond the Completion
- Moreover, one must bear in mind in relation to Royal
Brompton that this was a professional negligence case. The
Architects were being sued on the basis that they had been far too
generous in granting extensions of time. One of their many
responses was to say that it was perfectly appropriate to give
extensions of time where there were concurrent culpable and
non-culpable causes of delay. However, the Court was not directly
concerned with the issue of whether extensions of time should or
should not be granted where there is true concurrency.
Problems with the Henry Boot approach
- Although the guidance in the Henry Boot case appears
clear, and comes from an extremely eminent source, there is, it is
suggested, some difficulty with this approach.
- It seems to follow that where there is true concurrency as
identified the Contractor gets an extension of time for the
relevant period and the Employer’s claim to liquidated damages
fails. That seems a fair outcome.
- However, there are difficulties.
- Firstly, how does one bring such a conclusion within the
wording of JCT Clause 25 or similar clauses? The Contractor has not
in fact been delayed by the bad weather or other Employer’s risk
event. He would have been delayed in any event because he had
- Secondly, what of direct loss and/or expense? Surely the
Contractor is not to receive loss and expense for this period when
he would have had to be on site in any event owing to his own
default. So one gets back into the problem of inconsistent
conclusions on claim and counterclaim.
- It may well be that the solution proposed by Dyson J. is fairer
and more reasonable than a situation whereby the Contractor pays
the liquidated damages even though he would have been in delay
anyway due to the Employer’s default. It is also more attractive
then an outcome whereby the elaborate extension of time provisions
are disapplied and time becomes “at large”.
- However, there are conceptual difficulties and this reinforces
the suggestion made above that a Court or other Tribunal will
rarely, if ever, make a finding of true concurrency.
Concurrency and Bespoke Amendments
- Mindful of these difficulties, Employers and developers now
seek to make amendments to Standard Forms which deal specifically
with the issue of concurrency. The intention is that if there is
concurrency the Contractor gets neither extension of time nor loss
and expense but has to pay liquidated damages for the period of
- In consideration such amendments, one must begin with the
proposition that “the parties are to be regarded as masters of
their contractual fate”: see Pagnan v Feed Products
 2 Lloyd’s Reports 601 at 611.
- Thus, if the amendments are sufficiently clear and compelling
in their effect they may indeed have the result suggested
- However, no matter what wording is adopted it will still fall
to be interpreted by a Tribunal. Most Tribunals will, I think, be
unhappy with an outcome whereby the Contractor must pay liquidated
damages even though he could not have completed earlier in any
event owing to the Employer’s default.
- Thus, such bespoke amendments are, in my view, likely to be
construed narrowly. In other words, concurrency will only be held
to arise where there is true concurrency of the plainest kind as
- Alternatively, a Tribunal might in effect undermine such
provisions by construing them broadly and then concluding that they
offended against the principle that the Employer should not be
entitled to claim damages where he had himself prevented the
Contractor from completing on time i.e. the time at large argument
- For the reasons identified above, it is my view that Tribunals
will always be reluctant to conclude that there is concurrency and
will confine such a conclusion to circumstances of “true
- It is also my view that attempts to draft bespoke amendments to
Standard Forms to make concurrency a more likely finding are
themselves likely to be unsuccessful.
Adrian Williamson QC, Barrister, Arbitrator, Adjudicator.
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