UK: Concurrent Delay: Allocating The Risk

Last Updated: 29 November 2018
Article by Marc Wilkins

Concurrent delay is an issue which continues to be a topic of much debate. Recently, the spotlight has turned to the enforceability of clauses which seek to allocate the risk of concurrent delays.

In last year's Annual Review Jeremy Glover reported on the decision of Mr Justice Fraser in North Midland Building Limited v Cyden Homes Limited.1 In July of this year the case came before the Court of Appeal.2

The dispute concerned a contract based on a heavily amended 2005 edition of the JCT Design and Build standard form, under which Cyden Homes had engaged North Midland as contractor on a project to design and build an exceptionally large home, together with substantial outbuildings, for members of the Dyson family.

The works were delayed for various reasons, and a dispute arose between the parties as to North Midland's entitlement to extensions of time. A major point of dispute related to whether a bespoke amendment, which incorporated a new sub-clause into the extension of time machinery, took effect to exclude North Midland's entitlement to an extension of time for delay where Relevant Events were concurrent with delay events for which North Midland was responsible. Sub-clause stated as follows:

"any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account".

Essentially, the intention of this new clause was to reverse the accepted position under the unamended JCT extension of time provisions, which was to maintain the contractor's entitlement to an extension of time in the event of concurrent delay (a position which has obtained judicial approval3

In the Part 8 proceedings before Mr Justice Fraser sitting in the TCC, North Midland had sought two declarations. First, that the effect of sub-clause was to render time "at large" in circumstances where a delay caused by a Relevant Event is concurrent with any delay for which North Midland is responsible. Second, that in such circumstances, North Midland's obligation was to complete its works within a reasonable time, thus rendering the liquidated damages provision void.

North Midland sought to rely on the doctrine of prevention, arguing that it had been prevented from completing its works by Cyden Homes, and therefore time had been set at large. In dismissing this argument, Mr Justice Fraser held that the prevention principle simply did not arise and that this case was purely concerned with the correct construction of the clause in issue. As to the meaning of sub-clause, Mr Justice Fraser found that it was "crystal clear".

Mr Justice Fraser made clear that save in certain specific cases such as illegality, parties are free to contract on whatever terms they choose, and such terms will override any common law doctrine such as the prevention principle.

North Midland appealed that decision on two grounds: (1) that the clause allocating risk in relation to concurrent delay is contrary to the overarching principle of law or public policy and is of no effect, and in the alternative (2) that a term ought to be implied which would prevent Cyden Homes from deducting liquidated damages in respect of periods of concurrent delay. Here, we are interested in the first ground of appeal.

The Court of Appeal Decision

Whilst Mr Justice Fraser's judgment was received positively by most, there were some who expressed doubt about it. However, the Court of Appeal unanimously upheld Mr Justice Fraser's decision, confirming that clauses which seek to allocate the risk of concurrent delay to the contractor are, in principle, valid and enforceable. The lead judgment, which was given by Lord Justice Coulson, provides a useful reminder of the principles of freedom of contract and prevention. It also provides some helpful comments in relation to concurrent delay.

Clear and unambiguous terms

Lord Justice Coulson held that clause of the contract was unambiguous, and agreed with Mr Justice Fraser that it was "crystal clear". Its meaning and effect was that on the happening of two concurrent delay events, one being a Relevant Event, and the other being an event for which North Midland was responsible, there would be no entitlement to an extension of time.

Freedom to allocate risk

Lord Justice Coulson made clear that the most important reason for rejecting the first ground of appeal was that clause was a term which had been expressly agreed between the parties. Having examined the authorities, he confirmed the position (as stated by Mr Justice Fraser at first instance) that the parties were free to contract out of some or indeed all of the effects of the prevention principle.

The prevention principle

In light of the clear and unambiguous nature of clause, and in the absence of express or implied terms which might have assisted North Midland (there were none on the facts), the only way North Midland could have avoided the effect of the clause was to persuade the Court that the clause was rendered inoperable by reason of some overarching principle of law or legal policy.

North Midland argued that the prevention principle was a matter of legal policy which would operate to prevent Cyden Homes enforcing the clause. However, North Midland's arguments in this regard were rejected by the Court of Appeal.

In addressing this argument, Lord Justice Coulson provided a useful reminder of the origins of the doctrine of prevention and its operation. He noted the importance of the decision of Jackson J in Multiplex Constructions (UK) Limited v Honeywell Control Systems Limited (No.2) [2007] BLR 195, referring to Jackson J's neat summary of the ambit and scope of the prevention principle in that case, i.e. that (1) legitimate actions by an employer under a construction contract which cause delay to completion may be characterised as prevention; (2) where the contract provides for an extension of time in respect of those events, time will not be set at large, and (3) any ambiguity in the extension of time clause should be construed in favour of the contractor.

Lord Justice Coulson held that here the prevention principle was "not engaged" as there was no contravention of either of the first two principles identified by Jackson J in Multiplex. He noted that among the list of Relevant Events identified at clause 2.26, was "any impediment, prevention or dispute, whether by act or omission, by the Employer..." which gave rise to an entitlement on the part of Cyden Homes to an extension of time. Accordingly, time would not be set at large by the occurrence of those events. In relation to the third principle, Lord Justice Coulson said this was not triggered since the meaning of the clause in question was "crystal clear".

In any event, Lord Justice Coulson made clear that the prevention principle does not have the status of an overriding rule of public or legal policy, and that it can only operate by way of implied terms. As such, the prevention principle is not capable of overriding an express term of the contract.

Freedom to allocate risk

Lord Justice Coulson made clear that the most important reason for rejecting the first ground of appeal was that clause was a term which had been expressly agreed between the parties.

Having examined the authorities, Lord Justice Coulson confirmed the position (as stated by Mr Justice Fraser at first instance) that the parties were free to contract out of some or indeed all of the effects of the prevention principle. In effect, that is exactly what North Midland and Cyden Homes had done, in terms that were crystal clear.

Concurrent delay

Whilst the question of whether there was in fact concurrent delay was not an issue to be decided in this appeal, Lord Justice Coulson addressed briefly the issue of concurrent delay. In doing so he gave the Court of Appeal's approval to the definition of concurrent delay put forward by John Marrin QC in his article "Concurrent Delay" published in the Construction Law Journalin 20024 and again in his 2013 SCL paper entitled "Concurrent Delay Revisited".5 That definition is as follows:

"A period of project overrun which is caused by two or more effective causes of delay which are of approximate equal causative potency."

Lord Justice Coulson left open the debate about whether or not an employer could be said to have prevented completion by the contractor in circumstances of concurrent delay, given that the contractor would have been in culpable delay in any event. Although it was raised in the proceedings, a finding on this question was considered unnecessary for the purposes of disposing of the appeal, and unwise without hearing full submissions on the point.


This decision confirms the already accepted position that absent any specific public policy grounds which might justify a departure from the express agreement of contracting parties, the principle of freedom of contract will prevail. Therefore, a clearly worded agreement which seeks to remove a contractor's entitlement to an extension of time in the event of concurrent delays will be valid and enforceable. From a practical perspective, the judgment is helpful in that it effectively approves a form of wording that would achieve this aim in a contract based on the JCT forms, and which could easily be adapted to suit other standard and bespoke forms of construction contract.

It is worth mentioning that as well as reversing the accepted position in respect of the unamended extension of time machinery in the JCT standard form, clauses such as the one in this case will also be in conflict with the approach adopted in the Society of Construction Law's Delay and Disruption Protocol (2nd edition) in relation to concurrent delay. However, there has for a while been a growing trend towards amending standard form contracts to provide certainty in relation to how the risk of concurrent delay is allocated. This trend is already starting to feed into standard forms, albeit with neutral wording which simply highlights the issue of concurrent delay, leaving it to parties to include special conditions allocating the risk. 6

The financial consequences of clauses such as the one in this case will be plain to contractors: where there is a period of concurrent delay to completion, the contractor will no longer be entitled to loss and expense for that period and will face deductions or claims for liquidated damages. Therefore, employers may well find contractors are reluctant to accept such clauses or, if they do, the additional risk will be reflected in their price. That said, whilst concurrent delay is an issue that is often raised on delayed projects, true concurrency of the type defined by John Marrin QC rarely occurs.


1 Neutral Citation Number: [2017] EWHC 2414 (TCC).

2 Neutral Citation Number: [2018] EWHC Civ 1744.

3 See Walter Lilly and Co Limited v Giles Mackay and Another [2012] EWHC 1773 (TCC).

4 18(6) Const. L.J. 436.

5 SCL Paper 179, February 2013, available at

6 See for example the 2017 FIDIC forms of contract.

This article is taken from Fenwick Elliott's 2017/2018 Annual Review. To read further articles go to Fenwick Elliott Annual Review 2017/2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions