Introduction

The judgment in Thomas Barnes & Sons (In Administration) v Blackburn with Darwen Borough Council (Council) [2022] EWHC 2598 (TCC) has caused further debate in relation to concurrent delay. The judgment seems to row against the preferred ‘first-in time-approach’ indicated in the SCL Delay and Disruption Protocol (Protocol). Construction projects are often delayed for many reasons, including, events for which the Employer is responsible (Employer Risk Events) and events for which the Contractor is responsible (Contractor Risk Events). These events can occur at different times or concurrently. The Protocol indicates that the meaning of true concurrency is:

10.3 … the occurrence of two or more delay events at the same time, one an Employer Risk Event, the other a Contractor Risk Event, and the effects of which are felt at the same time.

However, true concurrency rarely occurs. As such, the Protocol indicates that concurrent delay concerns a situation where two or more delay events arise at different times, but the effects of them are felt at the same time. The Protocol points out that:

10 … For concurrent delay to exist, each of the Employer Risk Event and the Contractor Risk Event must be an effective cause of Delay to Completion (i.e. the delays must both affect the critical path).

From a legal perspective, there are two competing views as to whether Employer delay is an effective cause of delay to completion where it occurs after the commencement of Contractor delay to completion but continues parallel to the Contractor delay. The Protocol gives an example whereby a Contractor Risk Event will delay completion by five weeks from 21 January to 25 February. Independently, an Employer Risk Event occurs after the Contractor Risk Event and will delay the completion from 1 February to 14 February. One view is that both events are effective causes of delay for the period from 1 February to 14 February as they both would have caused delay in the absence of the other. The other view is that the Employer delay will not result in delayed completion of the project because the project was already going to be delayed by a greater period by the Contractor Risk Event. Thus the only effective cause of delay is the Contractor Risk Event.

An Effect Cause of Delay to Completion

In the example above, the Protocol recommends that the latter of the two views is the preferred approach. The Employer Risk Event should be seen as not causing delay to completion (and therefore there is no concurrency). In other words, the Employer Risk Event is not an effective cause of delay. Concurrent delay only arises where the Employer Risk Event is shown to have caused delay to completion or, in other words, caused critical delay (i.e. it is on the longest path) to completion. As such, the Protocol favours what is referred to as the first-in-time approach.

It is generally accepted that under standard forms of construction contracts, a contractor is entitled to an extension of time where effective delay is caused by matters falling within the extension of time provision, notwithstanding the matter relied upon by the contractor is not the sole or dominant cause of delay. The rationale for such an approach is that where the parties have expressly provided in their contract for an extension of time caused by certain events, the parties must be taken to have contemplated that there could be more than one effective cause of delay (one of which would not qualify for an extension of time) but nevertheless by their express words agreed that in such circumstances the contractor is entitled to an extension of time for an effective cause of delay falling within the relevant contractual provision.

In respect of claims arising under the contract Keating on Construction Contracts summaries causation and concurrency as follows:

9-105 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.

Barnes v Blackburn

The judgment in Barnes v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC) (Council) has cast doubt on the preferred first-in-time approach in the Protocol. The Council engaged Barnes to construct a bus terminal. The completion of the works was delayed due to a deflection of steelwork, which was an Employer Risk Event. The deflection prevented the construction of a hub containing offices. The construction of the hub was required before internal finishes could be commenced. An extension of time was granted to Barnes for the delay caused by the deflection.

While the deflection issue was ongoing, a Contractor Risk Event occurred relating to roof coverings. The roof coverings were required to be in place to ensure that the hub was watertight allowing the internal finishes to commence. The roof coverings issue was resolved and did not add any independent delay to that caused by the deflection issue.

Based on the preferred first-in-time approach in the Protocol, the roof coverings issue would not be considered an effective cause of delay and therefore not concurrent. The works were already delayed by a greater period caused by the deflection issue. The roof coverings issue did not cause critical delay to the longest path to completion. However, in Barnes, although the roof coverings issue was subsumed by the deflection issue, the court found that both issues caused delay were concurrent. Stephen-Davies J stated that:

140 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 works items were on the critical path as regards the hub finishes and both were causing delay over the same period.

And:

144 … The claimant cannot simply say that because there was a problem with the hub structural steelwork identified in October 2014, which was not finally resolved until January 2015, all of the delay between those points in time was only caused by this cause.  It ignores the fact that for a very considerable period of time there was also a problem caused by the delay to the roof coverings which was itself a cause of delay to the critical path.

Although, Barnes was successful in its claim for an extension of time because of the courts finding of concurrent delay, much of Barnes loss and expense claim failed because the losses were incurred in any event resulting from the roofing issue.

Conclusions

Although, the judgment is from England and Wales, it is of interest in an Irish context. The Protocol is often referred to in construction disputes in Ireland where arguments about concurrent delay are advanced. The courts reasoning regarding concurrent delay appears contrary to the preferred first-in-time approach in the Protocol. Perhaps the court was mindful of the potential harsh impacts of the first-in-time approach in the Protocol, whereby, a contractor would not be entitled to an extension of time for an overlapping Contractor Risk Event and Employer Risk Event in circumstances where the Contractor Risk Event occurred first-in-time, it being the effective cause of the delay and not concurrent.

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Photo of Paul Hughes Paul Hughes

Paul Hughes is a senior associate in A&L Goodbody’s Construction & Engineering group. Paul has extensive experience in construction disputes and acts for employers, contractors and sub-contractors across multiple sectors, including, civil engineering, residential, commercial, educational, refurbishment, repair and maintenance and energy. Paul…

Paul Hughes is a senior associate in A&L Goodbody’s Construction & Engineering group. Paul has extensive experience in construction disputes and acts for employers, contractors and sub-contractors across multiple sectors, including, civil engineering, residential, commercial, educational, refurbishment, repair and maintenance and energy. Paul has expertise in disputes concerning extensions of time, loss and expense, defects, variations, payments, final accounts, true valuations, termination and asbestos. Paul has experience of dealing with disputes arising under the standard forms of contract, including, JCT, NEC, FIDIC, PWC & RIAI and ancillary agreements. Paul holds a PhD (Law) and is a solicitor in both Ireland and England and Wales. He is also a Fellow of the Royal Institution of Chartered Surveyors (FRICS), the Society of Chartered Surveyors Ireland (FSCSI), the Chartered Institution of Civil Engineering Surveyors (FCInstCES) and the Chartered Institution of Arbitrators (FCIArb).