What questions are raised by concurrent causes of the same delay?
Concurrent causes of the same delay are not uncommon. One cause might be a relevant event under the contract (and therefore the employer's responsibility). The other might not be a relevant event (and therefore the contractor's responsibility).
This raises questions as to:
• whether the contactor is entitled to any extension of time; and
• if so, whether the contractor is entitled to a ‘full’ extension or whether there should there be an apportionment of the delay between the two causes.
What is the position under English law?
The judgment most often quoted is that of Dyson J in Henry Boot Construction v Malmaison Hotel (1999). Dyson J noted without adverse comment the approach agreed on by the parties. This was that the contractor will be entitled to an extension of time for the delay caused by the relevant event notwithstanding that the relevant event it relies on:
• is not the ‘dominant’ cause of delay; and
• only has equal ‘causative potency’ with the other cause. In other words there should be no apportionment of the overall period of delay despite some of that delay being caused by an event at the contractor's risk.
The authors of Keating on Construction Contracts favour this approach as correctly stating the position. They set out their rationale for the approach - namely where the parties make express contractual provision for an extension of time caused by certain events, they are to be taken as having:
• contemplated that there could be more than one ‘effective’ cause of delay (one of which would not qualify for an extension of time); and
• agreed by their express words that in such circumstances the contractor was entitled to an extension of time for an ‘effective’ cause of delay which was a relevant event.
This approach also found favour more recently with Judge Davies in Steria v Sigma Wireless Communcations (2007). He stated that:
• the fact that a judge such as Dyson J with such wide experience noted the parties' agreement without adverse comment was a strong indication that he considered that it was correct; and
• the rationale suggested by the editors of Keating appeared to be compelling and to apply to extension of time clauses generally.
Finally some legal commentators have said that this approach is also supported where the contract requires the contract administrator to grant extensions of time on a ‘fair and reasonable’ basis. This is the basis for granting extensions of time under the JCT and ICE forms of contract - although NEC3 does not mention these words.
What is the position under Scottish law?
The recent first instance decision in City Inn v Shepherd Construction (2007) adopts a very different approach. Lord Drummond Young dealt with what he described as a ‘true concurrency’ of causes in the form of concurrent relevant and contractor default events with equal ‘causative potency’. He stated that:
• it can be appropriate to apportion the overall delay between the relevant events and the contractor default events where there is a ‘fair and reasonable’ contractual basis for granting extensions such as under the JCT contracts; and
• it was appropriate to apportion the delay in this way taking into account the particular circumstances of the case.
Conclusion
There now appear to be two different approaches endorsed by judges at first instance in England and Scotland. Ironically both have drawn support from the ‘fair and reasonable’ wording in the JCT contracts. Guidance from the appellate courts would be very welcome! Concurrent causes of delay
Please note: These key points are only intended to give general guidance and are no substitute for specific legal advice on any given situation.