Delay in Construction of Projects by Builders

Jurisprudence on Construction Laws and Delays

There is no single generally accepted definition of concurrent delay. A narrow definition is ‘true concurrency’, where the employer and contractor delay events occur at the same time and cause a delay to progress for the same period sharing the same start and finish dates, either of which, in the absence of the other, is likely to cause the same delay to the completion of the project.

There are two main approaches followed by arbitrators and courts across different jurisdictions in the world.

A. The Malmaison Approach

This approach is best explained by the UK’s Technology and Construction Court (TCC), in the case of Henry Boot Construction Ltd v Malmaison Hotel. Essentially, if there are two concurrent causes of delay, one of which is an event that is relevant and beyond the control of the contractor, and the other of which is not beyond the control of the contractor, then in such a case, the contractor is entitled to an extension of time caused by the relevant event. Although this is notwithstanding the concurrent effect of the other event, the contractor shall not have the option of recovering any time-related costs. This approach is well appreciated in Swiss law and is contained in Article 44 of the Code of Obligations of the Swiss Civil Code.

B. Apportionment Approach

Rejecting the Malmaison approach, the Scottish courts in City Inn v Shepherd Construction Ltd laid down the apportionment approach. In summary, where there are two competing causes of delay, neither of which is dominant, the delay must be apportioned between the contractor and the employer. This approach was also adapted by the High Court of Hong Kong in Hing Construction Co Ltd v Boost Investments Ltd, which was sanctioned and followed by the Scottish courts in the City Inn Case. Along similar lines, the United Arab Emirates Civil Code also has similar principles embodied in articles 287, 290, and 291.

Although the Malmaison Approach has been consistently upheld by UK courts, there have been a few distinguishing interpretations. In Saga Cruises v Fincantieri, the court held that the contractor should not be given the opportunity to take advantage of the employer’s delay event if there was already an existing delay, and the employer’s delay has no significant impact on the completion.

Therefore, it can be seen how different jurisdictions interpret and rule on concurrent delay in construction contracts, although they are still applying the same settled principles of law. In India the both Jurisprudence can be seen. 

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