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Concurrent delay: A never-ending saga

Concurrent delays are a tricky area of construction contracts and good ground for lawyers and delay analysts to spend hours dwelling on the possible outcomes.

The generally accepted meaning is that concurrent delay is a delay caused by two or more events that are approximately equal in effect.

In this already murky area, the recent case of Saga Cruises BDF Ltd & Others v Fincantieri SPA has sailed in to provide more clarity.

Facts of the case

A dispute arose out of a contract for the dry docking, repair and refurbishment of the claimant’s cruise ship.

This included a claim of 770,000 euros for liquidated damages for late completion of the work to the vessel.

The defendant argued that a number of delaying factors arose simultaneously and that it was entitled to an extension of time for delay events that were not at its risk.

“This decision may reduce a contractor’s ability to claim an extension of time, as the scope for claiming that an employer delay is concurrent with a contractor delay has been limited”

However the claimant argued that because completion of the project was already delayed for reasons for which the defendant was responsible, the delays to completion relied upon by the defendant were not concurrent delays and did not give rise to an entitlement to an extension of time.

In effect, the claimant claimed it did not cause any additional delay to that which had already occurred as a result of the defendant’s earlier delay events.

The court agreed with the claimant and decided that the defendant’s delays were the effective cause of the delay. It held that the claimant’s delay events were not concurrent with the defendant’s delay events.

What it means

Previous court decisions have focused more on whether the events had equal causative potency (and not which had occurred first in time) in deciding whether they were concurrent.

The court’s approach of assessing the start and end dates for individual delay events appears to be a narrower approach in assessing whether there has been concurrent delay.

It emphasises the question of fact of whether the employer delay events cause any further delay than had already occurred due to a contractor delay events.

This may reduce a contractor’s ability to claim an extension of time, as the scope for claiming that an employer delay is concurrent with a contractor delay has been limited.

This may be re-assessed by a different court later, of course. This saga is not over yet.

Jorge Klein is an associate in the construction, engineering and projects team at Charles Russell Speechlys

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