Concurrent delay: get your retaliation in first

A recent case demonstrates an altered approach to concurrent delay that moves away from the ‘first in time’ approach.

Famously, Willie John McBride told his teammates on the iconic 1974 Lions tour of South Africa to “get your retaliation in first”. So, what has this got to do with concurrent delay?

Blackburn with Darwen Borough Council engaged Thomas Barnes to construct a bus station under a JCT standard form contract. The works were delayed, Thomas Barnes claimed extensions of time and loss and expense. The council ultimately terminated the contract for delay. Subsequently, Thomas Barnes went into administration. The whole mess ended up in the Technology and Construction Court.

In the proceedings that followed, Thomas Barnes claimed an extension of time based upon delays caused by steel frame deflections (a council risk). The council’s view was that at the same time as the steel frame deflections were causing delay, there were delays relating to the roof covering (a contractor risk). This is where concurrency comes into play.

When looking at the extension of time issues, the court offered some commentary to the effect that the Society of Construction Law protocol on delay and disruption is intended as a useful guide but only that. The parties should not lose sight of the fact that the name of the game was the assessment of any delay to practical completion.

The council’s view was that the critical path ran through the steelworks and into the roof covering. Thomas Barnes’ position was that as the impact of the steel frame deflections continued throughout and beyond any delay to the roof covering, the roof covering was never a cause of critical delay.

The court suggested that (adopting the view in Keating) the law is “settled” on the subject of concurrency, citing two broad principles:

• Normally a contractor is entitled to an extension of time if there is employer delay even though there was a concurrent cause of delay for which the contractor was responsible.
• The contractor can only recover loss and expense if it satisfies the “but for” test in periods of concurrent delay.

The court found that the delay caused by the steel frame deflections had started from as early as August 2014 and continued until around 6 February 2015, while the delay in relation to the roof covering was in two parts. Firstly, delay to starting these works ran from 23 September 2014 to 3 November 2014. Secondly, these works then were completed on 23 February 2015, which was 26 days longer than programmed.

Therefore Thomas Barnes was in delay in relation to the roof covering for a reasonable proportion of the period when the steel frame deflections were impacting the programme.

The court agreed that the roof covering was critical because it needed to be progressed before a start could be made to the internal finishes and services to the hub and concourse areas, as well as the concourse glazing.

Based upon this evidence, the court found the steel frame deflections were a concurrent cause of delay over a period of delay caused by the roof covering. Both these delays meant the hub finishes could not meaningfully start.

In particular, in the period in question, even if there had been no delay to the roof covering, the hub finishes (which were on the critical path) could not have started earlier because of the delay caused by the steel frame deflections. The converse was also true. Even if there had been no delay as a result of the steel frame deflections, the hub finishes could not have started earlier because of the delays to the roof covering.

The effect was that Thomas Barnes got most of its extension of time (though not all of it, for other reasons) but was only entitled to a drastically reduced recovery for prolongation costs because of the concurrent period when the roof covering delays were active.

This case is important due to its findings about when there was concurrent delay. In previous decisions such as Adyard Abu Dhabi, there seems to have been support for what is termed the “first in time” approach to concurrency. This is that there is no concurrency if, say, a contractor was already in delay but then a relevant event occurs which, by reason of the existing delay, made no difference.

If the “first in time” had been adopted in this case, it would seem that concurrency would not have been found to have occurred – on the logic that the roof covering delay had no effect on the completion date because the delays caused by steel frame deflections were continuing both before and after the period of delay caused by the roof covering. On one view, it therefore made no difference. That would have meant that Thomas Barnes could have got its retaliation in first and got its prolongation costs for its full extension of time because the driving factor was delays caused by the steel frame deflections. This case seems to favour a different approach, which arguably leads to a fairer result.

I wonder whether Willie John would consider this question settled? A decision from the Court of Appeal defining precisely the circumstances when concurrent delay arises would be helpful.

This article originally appeared on building here.