The Recurring Debate Over Concurrent Delays
Rights & Remedies
The recent publication of the John Marrin QC paper Concurrent Delay Revisited, updated to reflect the Walter Lilly judgement, helpfully summarises the approach likely to be taken by the English courts in considering concurrent delays.
In February 2013, the Society of Construction Law in the UK published a paper by John Marrin QC entitled “Concurrent Delay Revisited” (SCL paper number 179) as an update to his previously published paper entitled “Concurrent Delay” of February 2002 (SCL paper number 100).
Marrin’s narrow definition of concurrent delay is one caused by two or more events which take place in parallel and are approximately equal in terms of causation. So if the events are not taking place simultaneously, or if one of the events can be said to be only a minor cause of the delay, it may be disregarded as, in effect, there is no concurrency. Therefore under his definition, in all likelihood, genuinely concurrent delays are going to be rare events.
Proof of a genuine concurrent delay is a question of fact but sometimes the facts alone cannot answer the question and the law is required to take a position in determining entitlement. In his updated paper, Marrin reviews the various approaches that the courts have historically taken in determining entitlement in the event of concurrent delay and identifies three different credible approaches which have been used to identify entitlement to an extension of time.