Concurrent delays approaches

Shahzad,

Excellent question. Can I also ask which of the three options PPer’s consider the most appropriate and under what circumstances?

I can’t wait to see the replies to this one!

Gary France
Chairman
Planning Engineers Organisation

The answer is 42.

In the circumstances of an extension of time; I consider the ’Devlin’ approach to be the most appropriate for concurrent delays. That is, when there are two competing events, one caused by the employer and the other caused by the contractor, each causing a delay - concurrently - then the contractor is entitled to an extension of time for the extent of the delay caused by the employer caused event.

However, with regard to loss or damages then the approach should be the ’burden of proof’. The contractor, or employer, should show how the loss/damage was caused by the specific delay or breach of contract.

Roger Gibson

NESS ’s opinion still awaited

What about the Malmaison approach?

In my view both concurrent delays need to be excusable under the contract.

Interesting topic and a common problem.
Much depends on the contract and its exact wording.
the Malmaison [vs Henry Boot 1999] approach is rooted in the point that an employer/client/develper can only enforce a completion date with attached LAD’s if they have done nothing to interfere with the contractors endeavours to reach the date. So with concurrent delays the delay due to the employer gives rise to an entitlement to an EOT on the completion date. Thus the contractor gets relief from LAD’s. BUT it does not mean the contractor gets entitlement to recovery of costs associated with the extended completion date.
To get cost recovery the contractor has to demonstrate the cost is directly [or as a direct consequence] attributable to the employers delay. And/or properly apportion the costs to his own account and the costs to the employers account. I understand [construction press] that ’global’ claims do not get far in legal proceedings these days.
Thus for cost recovery the ’burden of proof’ remains with the contractor and an honest and accountable approach to claiming recovery of additional costs is the most likely to succeed.
This approach , also helps to reduce or at least keep a better focus on the indeterminable debate on ’ownership of float’. Once the EOT for relief of LAD’s is determined then float is a non issue.
As i understand the Devlin approach it is that with two causes of loss if one is a breach of contract then the brach of contract carries the whole burden of the loss, an approach which doen’s carry favour as it is not very fair or reasonable.
The ’dominant’ cause can have some mileage. This is not just in the timing of events or causes but also the scale of the event and as with all methods requires some common sense. an employer can’t hide a major event of significant impact behind a relatively trivial problem of the contractors. equally a contractor in severe difficulties of their own making can not use a minor change or breach by the employer to escape from these difficulties and blame all their woes on the employers minor event.
The ’tortious solution’ is an interesting one and envolves envoking the "But For" question. I’ve met proponants of the As Built But For methiod of analysis, it seemed to require a vast logic linked as built programme of evrything which you then analyse minutely on a but for basis. More of a torture solution. However in discrete scenarios asking yourself what if X had not happened [i.e. but for] can be useful to understand the relative impacts of events.
Ultimately there is no fixed or ’best’ way to analyse claims as so much depends on particular circumstances and the wording of the Contract.Often people are so engrossed in the minutae of analysis techniques within a complex computer application they forget to step back and consider the fundamental common sense issues. Ultimately your case has to be simple enough for the Judge to understand.
Regards
jk