It is now common to see within JCT Contracts Employer amendments proposing a new clause stating that the Contractor is not entitled to an extension of time where there is concurrent delay. Concurrent delay can be defined as ‘a period of project overrun which is caused by two or more effective causes of delay which are of equal causative potency’.
Historically, if the Contractor was in delay and the Employer was responsible for part of the delay (and the contract did not deal with this situation adequately) then he could have relied upon Common Law and The Prevention Principle. The Prevention Principle essentially holds that the Employer cannot claim delay damages if the delay is partly caused by him the other consequences resulting from this is that time is set at large but the Contractor would be unable to claim for prolongation costs.
The advent of the concurrent delay discussion has caused much debate as to the consequences and recourse available to either party for delays caused at the same time by both parties. The Courts have ruled in favour of the Contractor as in the case of Walter Lilly & Company v Mackay 1 Anon  EWHC 173 where the it was ruled that ‘where delay is caused by two or more effective causes one of which entitled the contractor to an extension of time as being the relevant event, the contractor is entitled to a full extension of time’; and in favour on the Employer as in Jerram Falkus Construction Ltd v Fenice Investments Inc  EWHC 1935 (TCC) which ruled ‘if there were two concurrent causes of delay, one which was the contractors responsibility and one which was said to trigger the prevention principle, the principle would in fact be triggered because the contractor could not show that the employers conduct made it impossible for him to complete within the stipulated time’.
The Prevention Principle however has been determined to be an implied term and so any express term (such as the concurrent delay clause) can exclude it.
This approach was confirmed in the case of North Midland Building Ltd vs Cyden Homes Ltd  EWHC 2414 (TCC) In this case North Midland Building Ltd (“NMB”) entered into Contract with Cyden Homes (“CH”) under a JCT Design and Build 2005 Contract which included a concurrent delay clause. NMB applied for an extension of time but CH concluded that there was concurrent delay and as such NMB was not entitled to an extension of time. In summary the Court held that the meaning of the concurrent delay clause was ‘crystal clear’ and therefore the prevention principle did not apply, this meant that CH’s original ruling stood and as there would be no adjustment to the completion date also entitled them to charge damages to NMB for the period at large.
Contractors should be aware of this clause and review their proposed contracts carefully for clauses which state clearly (or imply) that the Contractor is not entitled to an extension of time if there is concurrent delay.
This article contains information of general interest about current legal issues and does not provide legal advice. It is prepared for the general information purposes only. This article should not be relied upon in any specific situation without appropriate legal advice.