Understanding Concurrent Delays in Construction Projects
Construction projects often face delays due to various reasons attributable to the owner, the contractor, or both parties. Determining which party is responsible for delays is a central issue in construction disputes. This challenge becomes more complex when multiple aspects, such as parallel execution at different sites and the interplay of critical and non-critical work paths, come into play.
Expert analysis and advanced methodologies like As-Planned vs. As-Built, Time Impact Analysis, and Critical Path Analysis have aided adjudicators. However, the reliability of these analyses and the experts conducting them often remains contentious, especially in cases of concurrent delay, a prevalent issue in the construction industry.
Defining Concurrent Delay
Concurrent delay occurs when delays are caused by both the owner and the contractor, making it difficult to pin responsibility on either party. The Indian Contract Act, 1872, does not define concurrent delay, but the Society of Construction Law Delay and Protocol (2nd Edition, February 2017) provides a definition. Clause 10 describes concurrent delay as two or more delay events occurring simultaneously, each affecting the critical path and contributing to the delay.
For instance, if an owner delays handing over a work front by 30 days while the contractor is also 30 days late in mobilizing equipment, the work begins on the 31st day in both scenarios. This situation exemplifies concurrent delay, where both parties’ actions critically impact the project’s timeline.
Principles Governing Concurrent Delay
1. Prohibition Principle
Established in the English case Peak Construction vs. McKinney Foundations [(1976) 1 BLR 111], this principle suggests that a contractor is entitled to an extension of time in concurrent delay scenarios, even if the contractor is also at fault. Owners cannot impose liquidated damages unless contractually stipulated otherwise.
2. ‘But-for’ Test
This test asks whether the contract would have been completed on time if not for the owner’s delay. It is often used to evaluate unrelated concurrent delays but is not frequently relied upon due to its inherent limitations.
3. Dominant Cause Approach
This approach identifies the primary cause of delay when both owner and contractor are responsible. The dominant cause dictates liability. However, it can be unfair as it might overlook the impact of each delay event.
4. Malmaison Approach
Originating from Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [(1999) 70 Con. L.R. 32 QBD (TCC)], this approach states that in concurrent delay, a contractor may receive an extension of time but no financial compensation. The English High Court in Saga Cruises v. Fincantieri [(2016) EWHC 1875 (Comm.)] supported this view, emphasizing that a contractor should not benefit from an employer’s delay event if already delayed.
5. Other Approaches
Different jurisdictions adopt various approaches. The apportionment approach, seen in City Inn v. Shepherd Construction Ltd. [(2010) CSIH 68], divides delay responsibility between the parties based on their contributions. The first-in-line approach considers owner-caused delays as sequential rather than concurrent. The extension of time but no recovery approach, from De Beers UK Ltd. v. Atos Origin IT Services UK Ltd, allows time extensions but denies compensation for concurrent delays.
Concurrent Delays in the Indian Context
Indian courts have addressed apportionment of delays, but detailed discussions on concurrent delay principles are limited. The High Court of Madras in Secretary to Govt. vs. SPL Infrastructure Private Limited [2019 SCC OnLine Mad 8603] endorsed the Malmaison approach, rejecting apportionment when delays were sequential and on the critical path.
Recently, the Bombay High Court in Mumbai Metropolitan Region Development Authority v. Mumbai Metro One (P) Ltd [2026 SCC OnLine Bom 1479] distinguished the De Beers judgment while addressing the extension of time and no recovery approach in an arbitration appeal.
Conclusion
As concurrent delays pose complex challenges, further clarity is needed in this area. Indian courts have effectively navigated delay concepts, but establishing clear principles for concurrent delays and their consequences is essential for future adjudication.
About the Author: Abinash Agarwal is an Associate Partner at MCO Legals (Meharia & Company).
Disclaimer: The views expressed are those of the author and do not necessarily reflect those of Bar & Bench.
