CMS Expert Guide to concurrent delay

Delays to construction project are a universal issue and cause problems for all parties involved in them - it seems on a worldwide basis. Each jurisdiction can point to high profile projects which run late and over budget.

These problems are exacerbated when there are multiple causes of the delay. Untangling the causes to try to establish which party takes the risk of the delay can be an extremely complex and time consuming exercise. These difficulties can be increased yet further for parties venturing into a new jurisdiction where they are not familiar with the approach that jurisdiction may take to dealing with competing causes of delay.

Welcome, then, to the 1st Edition of the CMS Expert Guide to Concurrent Delay. In this Guide we provide an introduction to the law relating to concurrent delay in each of the jurisdictions listed. For each jurisdiction the authors have answered the standard set of questions set out below and also considered how the law on their jurisdictions would treat the scenario referred to.

It has become apparent whilst compiling this Guide that a distinction can be drawn between jurisdictions that have developed jurisprudence on this topic and those that do not; we have grouped the reports from the jurisdictions we’ve covered accordingly.

The questions

  1. Is concurrent delay a well developed and understood concept?
  2. Is there a generally understood and accepted definition of concurrent delay and when it arises?
  3. How is the issue of concurrent delay treated?
  4. Are there any general principles that apply to the treatment of concurrent delay?
  5. How is the question of evidence as to causes and periods of delay dealt with?
  6. Would a contract term which provides that one or other party will take the risk of concurrent delay be effective in your jurisdiction?

The scenario

An event that is at the Contractor’s risk under the contract (a “Contractor Risk Event”) will result in five weeks delay to completion, delaying the contract completion date from 21 January to 25 February. Independently and a few weeks later, a variation is instructed on behalf of the Employer which, in the absence of the preceding Contractor Risk Event, would result in delay to completion from 1 February to 14 February. In this scenario:

  1. Is the Contractor entitled to an extension of time in respect of the variation? If so, for how long?
  2. Assuming the Contractor is contractually entitled in principle to recover delay-related costs relating to the variation, for what period (if any) could it recover those delay-related costs?

We hope you find this Guide useful. Your CMS experts will be happy to answer any questions you may have.

Jurisdictions with developed jurisprudenceJurisdictions without developed jurisprudence




























CMS Guide to Concurrent Delay 2020