Michelmores Michelmores
Michelmores Michelmores
  • Home
  • Expertise
  • People
  • Insights & Events
  • Careers
  • About
  • ESG
  • Contact
Share
Published October 10th 2016
Home > News & Insights > Article

Concurrent delay in construction projects: An ongoing conundrum

 

Ask any experienced construction professional and they will tell you that delay is likely to be a feature of even the very best run project.

The usual stick which an employer/developer will have to secure timely completion will be the imposition on the contractor of liquidated damages at a particular rate per day/week/month for the period of delay. The imposition of liquidated damages works well where blame for the delay can fairly and squarely be laid at the contractor’s door. However, if the fault lies with the employer/developer, as a matter of law he can neither insist on the specified completion date (insofar as he has prevented completion), nor can he levy liquidated damages. Most construction contracts therefore incorporate detailed extension of time provisions, allowing the completion date to be extended where the existence of delay has not been caused by the contractor.

The position where both the contractor and the employer/developer are responsible for delays, occurring in the same period of time, is called ‘concurrent delay’. It has been the subject of legal debate for a number of years. The generally accepted principle in this situation follows the judgment of the court in a case named Henry Boot Construction Ltd v Malmaison Hotel (Manchester) Ltd – that the contractor is entitled to an extension of time (notwithstanding its own fault), and is not liable to the deduction of liquidated damages. It is not however entitled to recover its time-related costs.

Whilst the position seems clear, there remains an issue (discussed in the recent case of Saga Cruises BDF Ltd v Fincantieri SpA) as to what is actually meant by ‘concurrency’. The courts have found that there is only concurrency if both events cause delay to the progress of the works and the delaying effect of the two events is felt at the same time. In summary, the act relied upon must actually prevent the contractor from carrying out the works within the contract period, or, in other words, must cause some delay. If the contractor is unable to establish this, he is unlikely to obtain an extension of time notwithstanding the Malmaison principle.

Share
EVENTS
Michelmores Property Awards Awards
Michelmores Property Awards

Celebrating the best of property, development and construction in the South West The Michelmores Property Awards celebrate the best property, development and construction projects in...

MORE
02/07/2025 6:15 pm
Sandy Park Conference Centre, Sandy Park Way, Exeter, EX2 7NN

Contact us

+44 (0) 333 004 3456

enquiries@michelmores.com

Subscribe to updates

  • Quick Links
    • Online Payments
    • People
    • About
    • Careers
    • Staff Login
  • Legal & Regulatory
    • View all policies
    • Privacy Policy
    • Website Terms
    • Cookie Policy
    • Modern Slavery Act

Locations:

  • london
  • cheltenham
  • bristol
  • exeter

© Michelmores LLP is a Limited Liability Partnership, authorised and regulated by the Solicitors Regulation Authority (SRA authorisation number 463401) and registered in England and Wales under Partnership No. OC326242.
The registered office is Woodwater House, Pynes Hill, Exeter, EX2 5WR. A list of the members (all of whom are solicitors or barristers) is available for inspection at the registered office and at michelmores.com

  • © 2025 Michelmores LLP. All rights reserved
  • Website maintained by Appeal Digital