Culpable and concurrent delay

Culpable delay in construction contracts

Construction contracts generally allow the construction period to be extended where there is
adelay that is not the contractor's fault. This is described as an extension of time (EOT).
Thecontractor may (but is not necessarily) also be entitled to claim for loss and expenseassociated
with the delay.

Culpable delay on the other hand is a delay that is entirely the fault of the contractor. Where
the contractor is culpable for a delay, they have no entitlement to an extension of time or loss and
expense.

Where there is a culpable delay, the period of time after the contractual date for completionhas
passed is referred to as the period of contractor culpable delay, and during this period,
thecontractor will be liable to pay liquidated and ascertained damages (LAD's) to the client.

Concurrent delay refers to the complex situation where more than one event occurs at the same time,
but where not all of those events enable the contractor to claim an extension of time. For more
information, see Concurrent delay.

In Carillion Construction Ltd. v Woods Bagot Europe Ltd. and others [2016], the Technology and
Construction Court (TCC) held that a subcontractor who had caused a delay, was also entitled to
an extension of time and that this should run contiguously from the contractualcompletion date. This
meant that the subcontractor’s period of culpable delay was extinguished, and they were no longer
liable for their own delay.

Concurrent delay

Concurrent delay is a complex term, the legal status of which remains unclear.

Delays on a project will have different contractual consequences depending on the cause of thedelay:

 Where a delay which impacts on the completion date is caused by the contractor(culpable
delay), the contractor may be liable to pay liquidated and ascertained damages(LADs) to the client.
 Where a delay which impacts the completion date is not caused by either the contractor or
the client, the contractor may be entitled to an extension of time.
 Where a delay is caused by the client, the contractor may be able to claim an extension of
time and loss and expense.
 Concurrent delay refers to the complex situation where more than one event occurs at the same time,
but where not all of those events enable the contractor to claim an extension of time or to claim loss
and expense.

As it is rare for events to happen at precisely the same time, concurrent delay is sometimes defined
as ‘Two or more delay events occurring within the same time period, each independently affecting
the Completion Date’ (Judge Seymour - Royal Brompton Hospital National Health Trust v Hammond
and Others), or where the events may have happened at different times, but their effects (at least in
part) are felt concurrently.

The difficulty arises in determining whether concurrent delays allow an extension of time andloss and
expense claims, or liquidated and ascertained damages.

For example, the contractor may already have been delayed through their own fault, when another
event occurs for which the client is at fault.

In the case of Royal Brompton Hospital National Health Trust v Hammond and Others, Judge
Seymour stated that concurrent delay did not mean ’ …a situation in which, work already being
delayed, let it be supposed, because the contractor has had difficulty in obtaining sufficient labour, an
event occurs which is a Relevant Event and which, had the contractor not been delayed would have
caused him to be delayed, but which in fact, by reason of the existing delay, made no difference.’

In this scenario, the event did not in fact impact on the completion date, which was already delayed by
the contractor. Where this is not the case – for example, in the case of Walter Lilly & Company Ltd v
Giles Patrick Cyrill Mackay, it was considered that ‘ …provided the relevant events can be shown to
have delayed the works, the contractor is entitled to an extension of time for the whole period
of delay caused by the relevant events. There is nothing to suggest an extension should be reduced if
the causation criterion is established.’

In the case of City Inn v Shepherd Construction, The Scottish Appeal Court decided that
apportioning delay was appropriate where there was no dominant cause of delay. They concluded
that:

 The relevant event must delay or be likely to delay the works.

 If a dominant cause can be identified, this must be the relevant event.
 If no dominant cause can be identified, an apportionment should be made in a fair and
reasonable way.

However, if the client contributes to an event, then they may not be entitled to liquidated and
ascertained damages. For example, in the case of Peak Construction v McKinneyFoundations, the
judge ruled ‘... I cannot see how, in the ordinary course, the employer can insist on compliance with
a condition if it is partly his own fault that it cannot be fulfilled…’
Furthermore, in Henry Boot Construction v Malmaison Hotel it was ruled that ‘…to take a simple
example, if no work is possible on a site for a week not only because of exceptionally inclement
weather (a relevant event) but also because the contractor has a shortage of labour (not a relevant
event) and if the failure to work during that week is likely to delay the worksbeyond the completion
date by one week, then if it considers it fair and reasonable to do so, the architect is required to grant
an extension of time of one week. He cannot refuse to do so on the grounds that the delay would
have occurred in any event by reason of the shortage of labour.'

The situation is complex, and cases tend each to have circumstances that are unique in some way.
Furthermore, cases of concurrent delay do not often reach the courts as they tend to be settled
through alternative dispute resolution procedures. The resulting uncertainty is compounded by the
differences in wording between various contract types.

Keating states that ‘..a proper analysis of entitlement to extension of time and any associatedloss and
expense in each case must involve a careful consideration of the wording of the relevant clauses and
an assessment of the (possibly different) tests of causation that should be applied to them in order for
the contractor’s actual entitlement to be arrived at.’

What is clear is that it is important for both parties to ensure they keep good records to demonstrate
that the event did actually occur and that it did impact on the completion date. If it is possible to carry
out a critical path analysis that demonstrates the effect of events on thecompletion date, then this is
beneficial, however, in the absence of such information it is likely that the courts will take a ‘common
sense’ approach.

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