Time - Building Contract Claims - page 26

The relevant event simply has no effect upon the completion date. This
situationobviouslyneeds tobedistinguished froma situation inwhich, as it
were, the works are proceeding in a regular fashion and on programme,
when two things happen, either of which, had it happened on its own,
would have caused delay, and one is a relevant event, while the other is
not. In such circumstances there is a real concurrency of causes of the delay.
It was circumstances such as these that Dyson J was concerned with in the
passage fromhis judgment in HenryBoot Construction (UK) Ltd v. Malmaison
Hotel (Manchester) Ltd at paragraph 13 on page 37 of the report which
[Counsel] drew to my notice. Dyson J adopted the same approach as
that which seems tome to be appropriate to the first type of factual situation
which I have postulated when he said, at paragraph 15 on page 38 of the
report: '' It seems to me that it is a question of fact in any case whether a relevant
event has caused or is likely to cause delay to theworks beyond the completiondate in
the sense described by Coleman J in the Balfour Beatty case ''.' 81

This seems to come nearest to the solution, but none of the cases provides a
universal solution.
When faced with a problem of concurrent delays, it is always worthwhile
pausing and asking whether the delays really are concurrent. Most delays
are in fact consecutive. The test is to look at the critical path. Delays must
generally be consecutive unless there are two or more critical paths. Several
critical paths running in parallel is a common situation, but even in such
cases, true concurrency is rare. Usually it can be seen that one delay occurs
after the other.
Therefore, before the question of concurrency arises at all, it must be
established that there are two competing causes of delay operating at the
same time and affecting the critical path or paths of the project. Examining
the situations set out at the beginning of this section:

(1) The delay is clearly caused by the architect's instruction which makes it
impossible for the contractor to work for the 'several days' it will take to
receive the new roof covering. That is the cause of the delay and any
extension to the completion date. The bad weather, even if satisfying the
criteria for 'exceptionally adverse weather', has no effect on the comple-
tion date which is already being delayed. Of course, if the roof covering
arrives, but the bad weather continues, the bad weather will take the
place of the late roof covering as a cause of delay.
(2) This, in essence, is the Balfour Beatty v. Chestermount scenario. There is no
actual concurrency of either the delaying event or the delay itself,
because what happens in this example is that although the contractor
is in delay, he is still working on site, trying to finish. When the architect
postpones the work, the contractor stops working on site and it is
the postponement which is causing the delay until the architect

brings the postponement to an end.

81 Royal Brompton Hospital NHS Trust v. Hammond and Others (No.7) (2001) 76 Con LR 148 at 173 per
Judge Seymour.