Concurrent delay

The doctrine of concurrent delay

The doctrine of concurrent delay is a principle in construction law that addresses situations where two or more events, one caused by the employer and the other by the contractor, occur at the same time and result in a delay to the completion of the project.

Under the doctrine of concurrent delay, if there are two or more causes of delay and one is the responsibility of the employer while the other is the fault of the contractor, the contractor may still be entitled to an extension of time for the period of delay caused by the employer's actions. However, the contractor will not be entitled to an extension of time for the period of delay caused by their own fault.

This doctrine can be particularly relevant in cases where there are delays caused by the actions or inactions of both parties, and it can be difficult to apportion responsibility for the delay. It helps to ensure that neither party is unfairly penalized and that both parties are held accountable for their respective contributions to the delay.

If an employer causes a two-week critical delay to the completion of the works, but, independently, a culpable delay by the contractor would cause the same delay, is the contractor entitled to an extension?

The scenario presents a situation of competing causes of delay in which both the employer and the contractor have contributed to the same delay. In such cases, the contractor's entitlement to an extension of time would depend on the specific provisions of the construction contract, as well as the applicable law and legal principles in the jurisdiction.

Under Saudi law, the principle of concurrent delay is recognized and applied in cases where both parties are responsible for the delay. Therefore, the contractor would likely be entitled to an extension of time for the two-week delay caused by the employer, even if the contractor's own culpable delay contributed to the same delay.

However, the construction contract may contain provisions that limit or exclude the contractor's entitlement to an extension of time in the event of competing causes of delay. For example, the contract may provide that the contractor is only entitled to an extension of time for delays caused solely by the employer, or that the contractor's culpable delay will nullify any entitlement to an extension of time.

Furthermore, if the contractor's culpable delay is found to be the dominant cause of the delay, then the contractor's entitlement to an extension of time may be affected. This would depend on the specific circumstances of the case, as well as the applicable law and legal principles.

In summary, the contractor's entitlement to an extension of time in cases of competing causes of delay would depend on the specific provisions of the construction contract, as well as the applicable law and legal principles. Parties to construction contracts in Saudi Arabia should ensure that their contracts address the issue of competing causes of delay to avoid disputes and ensure that the contract is enforceable.

Concurrent delay in light of Saudi Law

Concurrent delay is a situation that arises when two or more events, each capable of causing delay to the completion of the project, occur simultaneously. The question that arises in such a situation is whether the contractor is entitled to an extension of time for the delay caused by the event, or whether the contractor is responsible for the delay.

Under Saudi law, the doctrine of concurrent delay is recognized and has been applied in several cases. For example, in a case before the Board of Grievances (Case No. 103/13), the Board held that where both the owner and the contractor are responsible for the delay, the principle of concurrency should be applied, and the contractor should be entitled to an extension of time.

Similarly, under Sharia law, the principle of concurrent delay is recognized, and courts have applied it in several cases. For example, in a case before the Islamic Court in Riyadh (Case No. 738/1423), the Court held that where the contractor is responsible for the delay, but the owner has also caused the delay, the contractor should be entitled to an extension of time for the period of concurrent delay.

Under the Government Tenders and Procurement Law Royal Decree No. M/128 July 16, 2019, the principle of concurrent delay is not explicitly addressed. However, it is generally recognized in the construction industry as a valid legal principle and can be applied to construction contracts in Saudi Arabia.

In terms of case law in Saudi Arabia, several cases have applied the doctrine of concurrent delay, including the aforementioned cases before the Board of Grievances and the Islamic Court in Riyadh. Other cases include the case before the Board of Grievances (Case No. 1202/10) and the case before the Court of Cassation (Case No. 1341/M/22).

In conclusion, the doctrine of concurrent delay is recognized under Saudi law and Sharia law and is generally accepted in the construction industry as a valid legal principle. Parties to construction contracts in Saudi Arabia should be aware of the principle of concurrent delay and ensure that their contracts address the issue to avoid disputes and ensure that the contract is enforceable.

Concurrent delay - Case Laws around the world

These cases illustrate the application of the principle of concurrent delay in different jurisdictions and guide how courts have approached the issue of competing causes of delay in construction contracts.

• North Midland Building Ltd v. Cyden Homes Ltd [2018] EWCA Civ 1744 - In this case, the court considered whether the principle of concurrent delay applies in English law. The court held that, in cases of concurrent delay, the contractor is entitled to an extension of time for the period of delay caused by the employer, but not for the period of concurrent delay caused by the contractor's default.
• Keating Construction Ltd v. JSM Construction Ltd [2016] EWHC 2575 (TCC) - This case involved a dispute over an extension of time in which the court applied the principle of concurrent delay. The court held that the contractor was entitled to an extension of time for the period of delay caused by the employer, even though the contractor's own delay contributed to the same delay.
• Habtoor Leighton Group v. Dubai Properties LLC [2013] DIFC CFI 019 - In this case, the court applied the principle of concurrent delay under Dubai law. The court held that where both parties contributed to a delay, the contractor would be entitled to an extension of time for the delay caused by the employer, but not for the period of concurrent delay caused by the contractor.
• Cyfield Constructions Ltd v. Eurocharity (Cyprus) Ltd [2012] EWHC 3283 (TCC) - In this case, the court considered the issue of concurrent delay under Cyprus law. The court held that where both parties contributed to a delay, the contractor would be entitled to an extension of time for the delay caused by the employer, even if the contractor's delay contributed to the same delay.

Here are a few cases where the doctrine of concurrent delay was critically reviewed by judges and rejected for contractor eligibility:

1. North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744: In this case, the Court of Appeal rejected the doctrine of concurrent delay and held that the contractor was not entitled to an extension of time. The court held that, in the absence of any express provision in the contract, the prevention principle applied and the contractor could not claim an extension of time for any period of concurrent delay.
2. Jerram Falkus Construction Ltd v Fenice Investments Inc [2011] EWHC 1935 (TCC): In this case, the judge held that the contractor was not entitled to an extension of time for a period of concurrent delay. The judge found that the contractor had failed to prove that the concurrent delay had caused a delay to the completion of the works and that, even if it had, the contractor had not taken any steps to mitigate the delay.
3. Henry Boot Construction (UK) Ltd v Alstom Combined Cycles Ltd [2005] EWHC 583 (TCC): In this case, the judge rejected the doctrine of concurrent delay and held that the contractor was not entitled to an extension of time. The judge found that the contractor had not established that the employer's delay had caused any additional delay to the completion of the works and that, in any event, the contractor had not given notice of the delay in accordance with the contract.

It is important to note that the approach to concurrent delays may vary depending on the jurisdiction and the specific terms of the construction contract.

Conclusion

The doctrine of concurrent delay is a principle in construction law that addresses situations where two or more events, one caused by the employer and the other by the contractor, occur at the same time and result in a delay to the completion of the project. Under this doctrine, if there are two or more causes of delay and one is the responsibility of the employer while the other is the fault of the contractor, the contractor may still be entitled to an extension of time for the period of delay caused by the employer's actions. However, the contractor will not be entitled to an extension of time for the period of delay caused by their own fault.

In some jurisdictions, such as the United Kingdom, the doctrine of concurrent delay has been the subject of critical review by judges in certain cases, and it may not always be accepted as a valid basis for contractors to claim an extension of time. The specific approach to concurrent delay may vary depending on the jurisdiction and the terms of the construction contract.

In Saudi Arabia, the Government Tenders and Procurement Law, Royal Decree No. M/128 July 16, 2019, does not specifically address the doctrine of concurrent delay. However, the law does provide provisions for the extension of time in certain circumstances, and these provisions may be relevant in cases where a concurrent delay arises. Sharia law may also provide guidance on the allocation of responsibility for concurrent delays in construction contracts.