In this blog Conor Ahern looks at the topic of concurrent delay and the position following the case of North Midland Building Ltd -v- Cyden Homes Ltd  EWHC 2414 (TCC) . This is his first blog post in an area where he has experience acting on behalf of both employers and contractors.
What is Concurrent Delay?
Concurrent delay is relevant to ascertaining extension of time entitlement when delays occur on a construction contract. The standard position in England and Wales is where there are two competing delays, one which the employer is responsible for (relevant event) and one which is the contractor is responsible for (a contractor delay), then the contractor shall be entitled to an extension of time for the period of delay caused by the relevant event, notwithstanding the concurrent effect of the contractor delay. This was the position established by Dyson J (as he then was) in Henry Boot Construction Ltd v Malmaison Hotel (Manchester) Ltd  70 Con LR 32 and reaffirmed in Walter Lilly v Mackay  EWHC 1773 (TCC) .
The Prevention Principle:
The Malmaison position is founded in the prevention principle rule which exists in construction contracts as an implied term. In respect of concurrent delays, the principle operates on the basis that the employer cannot hold the contractor to the original contract date and claim damages for late completion where the employer has caused delays. The prevention principle applies as the employer is prevented from benefiting from their own breach against the contractor.
Amending the standard position:
However as with any implied terms, the position can be amended through express terms included within the contract. The recent decision in North Midland Building Ltd v Cyden Homes Ltd  EWHC 2414 (TCC) serves as a reminder of this. Here the Court of Appeal, confirming the decision in the TCC, upheld an agreed clause amendment in a JCT Design and Build Contract, which provided that the contractor was not entitled to an extension of time in the event of concurrent delay. The court rejected the contractor’s arguments that the prevention principle rendered the clause inoperable, or that it was an implied term preventing the employer from recovering liquidated damages in the event of concurrent delay.
Employers have been including this clause for some time in proposed contracts, and this is likely to remain the trend. Contractors have been swift to reject the amendment and are keen to keep their options open should they require an extension of time during the construction contract. Ultimately it will come down to the contract negotiations between the parties, but the position set out in North Midland Building Ltd v Cyden Homes Ltd is clear and the prevention principle will not be a valid defence for a contractor where the parties have agreed to amend the risk allocation for concurrent delays in the construction contract.
Author Conor Ahern is a Chartered Quantity Surveyor with over 12 years’ experience in the Construction Industry acting for Contractors, Consultants and Developers both in Ireland and the UK working on contentious and non-contentious matters. Conor has also successfully completed the Arbitration Award Writing examination and is a Fellow of the Chartered Institute of Arbitrators and a Member of the Royal Institute of Chartered Surveyors. His experience includes: Adjudication, Insurance, Collateral Warranties, Bonds, Pre-Contract Advice, Contract Drafting, Final Account, Contract Formation, Parent Company Guarantee’s, Financial Security, Quantum and Delay Analysis