DOES YOUR FIDIC CONTRACT PROVIDE
FOR CONCURRENT DELAY RISK EVENTS?

Many contractors are aware of the dangers of concurrent delay and proving it, but fail to provide adequately in their contracts how to deal with concurrent delay risk events. There’s a line of cases dealing with concurrent delay, and in the case of Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 (Comm) the court approved the definition of concurrent delay in an article by John Marrin QC, in which he defined concurrent delay as "a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency". In Thomas Barnes & Sons PLC v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC) the courts approved the summary of settled law on concurrent delay given in Keating on Construction Contracts 11th edition (“Keating”) at 9-105 as follows: “In respect of claims under the contract:

(i) depending upon the precise wording of the contract a contractor is probably entitled to an extension of time if the event relied upon was an effective cause of delay even if there was another concurrent cause of the same delay in respect of which the contractor was contractually responsible; and

(ii) depending upon the precise wording of the contract a contractor is only entitled to recover loss and expense where it satisfies the “but for” test. Thus, even if the event relied upon was the dominant cause of the loss, the contractor will fail if there was another cause of that loss for which the contractor was contractually responsible.”

It’s important to pay particular attention to the words “depending on the precise wording of the contract”, because construction contracts often do not deal with the issue of concurrent delay. However, the parties can agree to an express provision in the contract to deal with concurrent delay, as was confirmed in North Midland Building Ltd v Cyden Homes Ltd [2017] EWHC 2414 (TCC). In this case the court clarified that the parties to a contract are free to agree whatever terms they wish to agree and are therefore are free to allocate the risk of concurrent delay. The prevention principle is no impediment to such agreement, because as was stated Multiplex v Honeywell [2007] EWHC 447 (TCC) case, the prevention principle does not apply if the contract provides for an extension of time in respect of the relevant events. The court reviewed the authorities and stated the following: “From this review of authority I derive three propositions:

(i) Actions by the employer which are perfectly legitimate under a construction contract may still be characterised as prevention, if those actions cause delay beyond the contractual completion date.

(ii) Acts of prevention by an employer do not set time at large, if the contract provides for extension of time in respect of those events.

(iii) In so far as the extension of time clause is ambiguous, it should be construed in favour of the contractor.”

The FIDIC Red Book 2017 suite of contract has introduced Clause 8.5, which states: “If a delay caused by a matter which is the Employer’s responsibility is concurrent with a delay caused by a matter which is the Contractor’s responsibility, the Contractor’s entitlement to EOT shall be assessed in accordance with the rules and procedures stated in the Particular Conditions (if not stated, as appropriate taking due regard of all relevant circumstances)”.

This doesn’t take the matter of concurrent delay much further. Over the years a number of clauses to deal with concurrent delay has been suggested by various parties, including the American Bar Association. Contractors are urged to look carefully the nature of their project, the possibility of employer caused delay and how this might affect the contractor. A suitable clause dealing with concurrent delay should then be fashioned and included in the contract.