Concurrent Delay: A matter of common sense

7 minute read  15.11.2022 Nikki Miller, Sophie Wallwork

A recent decision arising out of the England and Wales High Court, Thomas Barnes & Sons PLC v Blackburn With Darwen Borough Council [2022] EWHC 2598 (TCC), has reignited the debate as to the appropriate manner in how to deal with concurrent delays to construction projects.


Key takeouts


  • This case suggests an emerging trend in Australia and the UK whereby courts will prefer a pragmatic, common sense approach to assessing delay, over completely accepting the opinions of delay experts.
  • The court's decision not to accept the evidence of either party's expert is of particular interest in light of the approach taken in White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166.
  • For those opposed to the first in time principle approach to concurrent delay, this decision provides support for its rejection.

The decision suggests an emerging trend in Australia and the UK whereby courts will prefer a pragmatic, common sense approach to assessing delay, over completely accepting the opinions of delay experts.

Facts

Blackburn with Darwen Borough Council (Council) engaged Thomas Barnes & Sons Plc (TB) to construct a new bus terminal in Blackburn (Project). The Project suffered significant cost increases and delay overruns for which TB claimed extensions of time. The Council denied TB's claims, terminated the construction contract for delay and appointed a replacement contractor to complete the works. TB subsequently entered into administration and administrators commenced proceedings against the Council for monies said to be due under the contract on a proper valuation of the works done at termination (including delay costs due to prolongation) as well as damages for wrongful termination. TB, relying on expert delay analysis, sought to establish entitlement to an extension of time (EOT) of 172 days, and costs. The Council disputed the claim in its entirety.

The case revolved around two competing causes of delay to the Project. The first, which supported TB's EOT claim and for which the Council was responsible, arose out of deflection issues within the steelwork that required investigation and remediation which ultimately delayed subsequent activities on the critical path (including pouring concrete topping and installing the 'hub SFS') (steel deflection delay). The second, for which TB was responsible, arose out of delays to TB's roof covering works (roof covering delay), which the Council alleged caused concurrent delay to the critical path at the same time as the steel deflection delay.

Concurrent delay

The term 'concurrent delay' is one that continues to give rise to significant debate as to what it is intended to capture. There has been support from both the judiciary (see Adyard Abu Dhabi v Sd Marine Services [2011] EWHC 848) and industry guidelines (see the Society of Construction Law Delay and Disruption Protocol, 2nd edition) that in circumstances as described above, the roof covering delay could not be a concurrent delay as it did not commence at the same time as the steel deflection delay. This is on the basis that the roof covering delay could not have impacted the critical path, as float is created in the roof covering activity by the first in time delay, namely the steel deflection delay (this is also known as the first in time principle).

Expert delay evidence

Both parties relied on expert delay evidence and each expert adopted methodologies in the Society of Construction Law Delay and Disruption Protocol to undertake their respective analyses. TB's expert adopted an 'as-planned versus as-built window analysis' method for assessing delay, whereas the Council's expert adopted a combination of 'time slice window analysis and time impact analysis' methods.

The judge, in assessing the methods of the opposing experts, stated that 'irrespective of which method of delay analysis is deployed, there is an overriding objective of ensuring that the conclusions derived from that analysis are sound from a common sense perspective'. Further, the judge made it clear that 'the court is not compelled to choose only between the rival approaches and analyses of the experts'. Instead, 'it must be for the court to decide as a matter of fact what delayed the works and for how long'. As a consequence of the experts' diverging opinions, the judge stated that the court would need to come to its own conclusion as to whether the steel deflection delay and the roof covering delay were concurrent.

Decision

Despite the fact that the roof covering delay was resolved while the steel deflection delay was ongoing (and did not cause any independent delay to the critical path to that caused by the steel deflection delay), the court determined that the delays were in fact concurrent, stating:

'In my judgment this is a case where these causes were concurrent over the period of delay caused by the roof coverings. That is because completion of the remedial works to the hub structural steelwork was essential to allow the concrete topping to be poured and the hub SFS to be installed, without which the hub finishes could not be meaningfully started, but completion of the roof coverings was also essential for the hub finishes to be meaningfully started as well. It is not enough for the claimant to say that the works to the roof coverings were irrelevant from a delay perspective because the specification and execution of the remedial works to the hub structural steelwork were continuing both before and after that period of delay. Conversely, it is not enough for the defendant to say that the remedial works to the hub structural steelwork were irrelevant from a delay perspective because the roof coverings were on the critical path. The plain fact is that both of the work items were on the critical path as regards the hub finishes and both were causing delay over the same period.'

Further, the court stated that TB could not seek to use the steel deflection delay as 'a convenient hook on which to seek to hang all of the delay to the works…when a closer analysis of the facts reveals this was simply not the case'. To do so ignored the fact that there was also a problem caused by the delays TB suffered to the roof coverings, which was itself a cause of delay to the critical path. Although the court held that TB was entitled to a 119 day extension of time for the period of the steel deflection delay, TB was not entitled to any prolongation costs other than for the period of the steelwork delay that was not concurrent with the roof covering delay (which was a period of only 27 days).

Implications

In reaching its decision, implicit in the court's reasoning was a rejection of the first in time principle approach to concurrent delay. Whilst the court's reasoning has support from older English appeal court cases, it is inconsistent with more recent decision and industry guidelines (as noted above) and will no doubt lead to reinvigorated debate on this topic.

It is also noteworthy that in reaching its decision, the court chose not to accept the evidence of either party's delay expert in full, and adopted an 'effective cause test' in order to come to its own conclusions as to whether there was in fact any concurrent delay. This approach is particularly interesting in light of the approach adopted by the New South Wales Supreme Court in the case of White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166, whereby the court similarly rejected both parties' expert delay analysis in favour of appointing its own expert in order to apply a common sense approach to making an assessment as to alleged delay.

For those opposed to the first in time principle approach to concurrent delay, this decision provides support for its rejection. We consider there may also be an emerging trend in Australia and the UK whereby courts will prefer a pragmatic, common sense approach to assessing delay, over completely accepting the opinions of delay experts. If you would like to know more, please get in touch with us.

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