Concurrent delays explained (again)

In the case of concurrent delays for which both employer and contractor are responsible, the contractor is entitled to an extension of time, but he cannot recover loss and expense. This position was stated yet again in the recent TCC case of De Beers v Atos. In that case, Edwards-Stuart J said “The general rule in construction and engineering cases is that where there is concurrent delay to completion caused by matters for which both employer and contractor are responsible, the contractor is entitled to an extension of time but he cannot recover in respect of the loss caused by the delay. In the case of the former, this is because the rule where delay is caused by the employer is that not only must the contractor complete within a reasonable time but also the contractor must have a reasonable time within which to complete. It therefore does not matter if the contractor would have been unable to complete by the contractual completion date if there had been no breaches of contract by the employer (or other events which entitled the contractor to an extension of time), because he is entitled to have the time within which to complete which the contract allows or which the employer’s conduct has made reasonably necessary.” Of course, people will pounce on this statement by Edwards-Stuart J to counter the position in the Scottish City Inn case. But they would be foolish to do so. The De Beers case judgment does not refer expressly to the City Inn judgment, and neither does it refer to any criticism or support for that judgment (or to any other English authorities on concurrent delay). It does not refer to any construction and engineering standard forms of contract and how they operate, but does refer extensively to the parties’ own bespoke IT services contract. Therefore, in reality the De Beers case may not actually have moved the debate on concurrency in construction and engineering disputes any further forward, other than to demonstrate, yet again, that most delay cases are decided upon the facts of the case rather than on some overriding legal principle. So the moral of this case is, do not expect to prove a delay claim on the basis of a legal argument – you need to prove your case with good solid facts and evidence of delay.