In this article for The Chartered Institute of Civil Engineering Surveyors, Damian examines concurrent delay (or concurrency) in construction, addressing the challenges of concurrent delays in construction projects, particularly how they lead to disputes. He highlights the need for clearer guidelines, improved use of technology and accurate project records.

A call for pragmatism

The entitlement to extension of time and penalties is the primary consideration in the analysis of construction delay. Perhaps as a result, concurrency or concurrent delay is an issue those involved in construction disputes love to debate.

A quick search online reveals a vast amount of ink which has been spilled in debating the various approaches to analysis and assessment of concurrent delays on construction projects. Debate around the subject stretches back over many years.

From as early as 1997, the term “Concurrent Delay” has appeared in court case reports. One of the earliest is that of Norwest Holst v Cooperative Wholesale Society – ([1997] EWHC Technology 356) .1 There have been many discussions over the course of the last 25 years or more on how concurrent delay should be addressed, its analysis, and indeed, whether it exists at all. Much time and money must have been lost in the complex theoretical analyses that have resulted from such debates.

Could we perhaps conclude that concurrent delay is almost inevitable on larger projects? And in any case, might a more pragmatic approach be helpful in reducing the likelihood of such arguments arising? Or at the very least a pragmatic approach should minimise the time spent in the arguments that result. 

Concurrency’s Definition and Assessment

The English judge and barrister, John Marrin QC (as he was then), stated in a paper for the Society of Construction Law in 2002:

“Since at least the 1980s, it has commonly been suggested that the correct approach to the matter of causation in determining contractors’ claims is to apply what is called the ‘dominant cause approach’.  On this approach, the architect is required to choose between competing causes of delay according to which is ‘dominant’ or ‘predominant’.” 2

This is perhaps a common-sense approach in its purest sense. It is also arguably, reflective of its time. Prior to the mid-late 1990s, computer technology was such that detailed electronic analyses of delay were less common. As a result, a more practical approach may have been necessary. 

As Pickavance3  observes, it was only with the arrival of the Pentium processor for the personal computer in the mid-1990s that such analyses were possible by anyone other than those with large, powerful computer technology.

Read the full article here

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  1. Norwest Holst Construction Ltd v. Co-Operative Wholesale Society Ltd [1997] APP.L.R
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  2. John Marrin QC in SCL paper titled ‘Concurrent Delays’, 2003 ↩︎
  3. Pickavance, Delay & Disruption in Construction Contracts, 3rd Ed. 2005 ↩︎