The consideration of critical path analysis in English law, Const. L.J.

2005, 21(3), 222-241

For educational use only

The consideration of critical path analysis in English law
(emphasis added)

Table of Contents

Introduction

Extension of time provisions in some of the standard forms of contract

The standard JCT form of building contract 1998 edition ("JCT 98")

Const. L.J. 225 The ICE conditions of contract, measurement version, 7th edition, September 1999
("ICE 7th")

The engineering and construction contract, second edition, November 1995 ("ECC")

Const. L.J. 227 The effect of a delay in a period of culpable delay

A brief examination of causation and concurrent delay

A resource-based quantification of delay

Case law in which delay analysis methodologies are considered

The extent to which an assessment of delay may be impressionistic

Journal Article

Construction Law Journal

Const. L.J. 2005, 21(3), 222-241

Subject
Construction law

Other related subjects

Contracts

Keywords

© 2021 Thomson Reuters. 1

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

Causation; Claims; Construction contracts; Delay; Extensions of time; Standard forms of contract

Legislation cited
Housing Grants, Construction and Regeneration Act 1996 (c.53)

*Const. L.J. 222 Introduction

This article considers the extent to which the common law now provides helpful guidance on what are, or are not, the appropriate
principles and techniques for the demonstration of the nexus between cause and effect in the context of construction delay
claims. The material herein is based largely on parts of a dissertation1 developed from two articles previously written on this
subject by one of the authors hereof, which articles were published in the Construction Law Review in 20022 and 2003,3 and
on a paper delivered by the other author.4

The use of critical path analysis techniques in proof of delay claims is a relatively recent innovation. The use of these techniques
in relation to the demonstration and proof of delay claims and the issues associated therewith is still a developing area of the
common law. Part of this development has arisen from the need for courts (and other tribunals) to adapt to the new techniques
made so accessible by computer. However, few cases have dwelt upon the use of the techniques used to demonstrate delay and
their usefulness in making a successful claim at law.

This is almost certainly because, until relatively recently, the standard forms of contract almost invariably included arbitration
clauses, which meant that disputes about delay claims would be referred to arbitration and, in most cases, the dispute thereby
resolved. Since May 1, 1998, however, when the Housing Grants, Construction and Regeneration Act 1996 ("the 1996 Act")
came into force, the majority of delay claims have been resolved by adjudication.

*Const. L.J. 223 Although the recent cases concerning delay analysis cover a variety of issues relevant to delay analysis,
this article focuses primarily on the extent to which the English common law assists in addressing the central question: "By
what means does the contractor go about proving that the delays complained of will, or have, affected the completion date in
a manner which is persuasive and yet proportionate to the matter in dispute?"5 In so doing, this article will seek to examine
the approaches to delay claims which appear to have found approval with the courts and those which have not. First, however,
the authors will briefly consider the contractual mechanisms in some of the commonly used standard forms of contract, which
provide the contractual basis for claims for delay and which give rise to some of the issues examined later in this article.

Extension of time provisions in some of the standard forms of contract

Before one considers whether delay analysis is necessary, or which particular method is appropriate, the first thing that has to
be done is to look at the contract. This is clearly a vital yet sometimes overlooked step. As often explained, an extension of
time provision is a purely contractual mechanism designed to preserve the employer's entitlement to liquidated damages and
to provide some additional allocation of risk in order to provide for ways in which certain foreseeable types of delaying event
are to be dealt with in the event that they arise. There is nevertheless likely to be a close connection between making a claim
for delay and recovering the additional costs incurred by the contractor associated with that delay. Delay claims are therefore
of considerable commercial importance to contractors.

The standard JCT form of building contract 1998 edition ("JCT 98")
JCT 98 is administered by an architect, who is appointed by the employer and acts as his agent, but is required to act fairly and
reasonably towards the contractor when exercising his or her powers and duties under the contract. Extensions of time are dealt
with under this form of contract at cl.25. Clause 25.4 provides a list of 18 categories of delay, which are known as "relevant
events" that give rise to an entitlement to apply for an extension of time in the event that they occur. The principal steps leading
to an extension of time as set out in the clause are as follows:

• When it becomes apparent that the progress of the works is being or is likely to be delayed then the contractor shall notify the
architect of the cause of delay and identify whether in his opinion it is a relevant event.

© 2021 Thomson Reuters. 2

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

• The contractor is required to provide with the notice, or as soon as possible after the notice, particulars of the expected effects
of the event and an estimate if any of the expected delay to the completion of the works beyond the completion date.

• Upon receipt of the notice and any further particulars the architect is required to decide whether in his opinion any of the
events notified are *Const. L.J. 224 relevant events and whether as a result of such events the works are likely to be delayed
beyond the completion date. If he so decides, he is then required to give an extension of time to the contractor in writing as
he then estimates to be fair and reasonable.

It is worth here emphasising the nature of the obligation on the part of the architect, since this is considered later in this article.
The architect is required to apply some degree of discretion in deciding what is "fair and reasonable". In addition, it is not a
condition of the entitlement to an extension of time that the event has caused delay to the "Completion Date". It merely requires
the architect to form the opinion that as a consequence of the event "the completion of the Works is likely to be delayed thereby
beyond the Completion Date".

This whole procedure is quite clearly intended to be carried out before the completion date since reference is made to the
contractor notifying the expected effect of the event, not necessarily the actual effect of the event. The architect is then required
to make a fair and reasonable estimate of the likely effect on the completion date, not wait until the completion date has arisen
to determine the precise effect.

In practice, it is quite often the case that the architect will wait for full particulars of the actual effect of the event before making
a decision, by which time the event and its consequences may be long past and the actual effect may be measured with greater
certainty. It is quite common for architects to wait until after completion before making such grants of extension of time, but
this is clearly not what the clause intended. The probable reason for this is that, once granted, an extension of time cannot be
taken away unless works are omitted from the contract sum and it is fair and reasonable to reduce the time for completion of
the works as a consequence of the omission. This almost certainly leads architects to err on the side of caution by avoiding
awarding the contractor too much time.

There is in addition a 12-week review period which commences upon practical completion of the works in which the architect
is required to review the extensions of time granted to the contractor and take account of any other relevant events that he is
aware of, whether or not they have been notified by the contractor. Earlier extensions cannot be reduced unless critical works
have been omitted since the previous extension of time. In accordance with cl.25.3.3.1, the architect is required to

"fix a Completion Date later than that previously fixed if in his opinion the fixing of such later Completion Date is fair and
reasonable having regard to any of the Relevant Events …".

It is also worth emphasising that this clause makes no mention of the requirement for events to have affected the completion
date. This is therefore a different sort of assessment, and there is potentially even greater discretion available to the architect in
deciding on extensions of time at this stage. However, by this time the works will in fact have been completed and the overall
effect of all the delaying events on the project will be known. This overall final assessment is therefore likely to be based on
a consideration of what has actually happened.

There is a possible tension between the two positions since any review on the basis of what actually happened cannot be used
to reverse an earlier decision that was made on the basis of the likely effect of events on the completion date.

*Const. L.J. 225 The ICE conditions of contract, measurement version, 7th edition, September 1999 ("ICE 7th")
ICE 7th is administered by an engineer, who is appointed by the employer and acts as his agent, and is required to act fairly
towards the contractor. This form of contract provides an entitlement to extensions of time under a number of clauses, but the
principal provisions for dealing with extensions of time are set out at cl.44 as follows:

• If one of the listed types of delay occurs, then within 28 days after the cause of delay has arisen or as soon thereafter as is
reasonable deliver to the engineer full and detailed particulars in justification of the period of extension claimed in order that
the claim may be investigated at the time (cl.44(1)).

• The engineer is then required to make an assessment of the delay, having regard to all the circumstances known to him at the
time, whether or not the contractor has made a claim (cl.44(2)).

© 2021 Thomson Reuters. 3

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

• If the engineer considers that the delays suffered fairly entitle the contractor to an extension of the time for substantial
completion of the works then he grants the extension to the contractor in writing (cl.44(3)).

• Not later than 14 days after the due date or extended date for completion, the engineer is then required to make a further
interim assessment based on all the circumstances known to him at the time and whether or not the contractor has made a
claim (cl.44(4)).

In a similar fashion to the JCT contract, cl.44(5) provides for a final review by the engineer of all matters that might entitle the
contractor to an extension of time, which review is to be carried out within 28 days of the issue of the certificate of substantial
completion. Also as with the JCT form, this final review may not result in a decrease in any extension of time already granted
by the engineer. In Keating on Building Contracts (7th ed.),6 it is observed that this is in contrast to the assessment in cl.44(4)
at the due date, which may reduce extensions previously granted.

Thus, although the wording and the timescales are different, the underlying principles are very similar to the JCT contract, and
again the intention is that extensions of time should be granted as the work proceeds. The principal distinction between the
contracts, however, is that the penultimate review under ICE 7th can be a complete retrospective review of all matters, and will
therefore be concerned with what by that stage has actually happened.

The engineering and construction contract, second edition, November 1995 ("ECC")
The ECC is administered by a project manager, and under this form the programme assumes greater importance than under the
other forms. There is no separate extension of time provision, but, instead, the contract provides for compensation events in
accordance with core cl.6. Clause 60.1 lists 18 types of *Const. L.J. 226 compensation event and provides the procedure for
notifying, assessing and implementing compensation events as follows:

• The project manager may notify the contractor of a compensation event at the time of the event, where the event arises from
the project manager, and request the contractor to provide a quotation for the compensation event.

• The contractor otherwise notifies the project manager of any compensation event which has happened, or which he expects
to happen, within two weeks of becoming aware of any such event.

• In order for the prices and/or the completion date to be changed, the project manager must decide that the event has not arisen
from any default of the contractor, that it is a compensation event, and that it will have an effect on actual cost or completion,
in which case he requests the contractor to submit a quotation.

• The contractor's quotation is required to include an assessment by the contractor of any proposed changes to the prices and any
delay to the completion date as a result of the event. If the programme for the remaining work is affected by the compensation
event, the contractor is required to include a revised programme showing the effect.

• The project manager may accept the quotation, request the contractor to submit a revised quotation or carry out his own
assessment.

• A delay to the completion date is assessed by the project manager as the length of time that, owing to the compensation event,
planned completion is later than planned completion shown on the accepted programme.

• A compensation event is implemented when the project manager accepts the quotation from the contractor or provides him
with his own assessment.

• An assessment of a compensation event may not subsequently be revised if a forecast upon which it was based is later shown
to be wrong, unless the project manager decides that the effects of an event are too uncertain to be forecast reasonably, in which
case he states the assumptions on which the quotation and the assessment is to be based. If his assumptions are later found to
be wrong, the project manager may notify a correction.

This is therefore quite a different procedure from that contained within the JCT and ICE forms of contract. Central to this
contract philosophy is the notion of identifying and assessing the effect of delaying events at the time at which they occur and
reflecting them on an updated programme. There is no provision for a final review of extensions of time previously granted.

© 2021 Thomson Reuters. 4

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

Thus what all these contracts have in common is the intention that delaying events will be identified and an assessment made
of their effect at the time they occur, and that to give rise to an extension of time the delaying event must be expected to affect
the completion date. The JCT and ICE contracts in addition provide for a period of final review of extensions of time after
completion, thus requiring an after-the-event assessment of the effect of the various delaying events in the knowledge of what
actually happened.

*Const. L.J. 227 The effect of a delay in a period of culpable delay

It is worth briefly noting here that the case of Balfour Beatty v Chestermount 7 is one which establishes a very important principle
in considering any entitlement to extensions of time and which, in the authors' opinion, represents a common sense approach
to the issue, namely that cl.25.3 of JCT 80 was wide enough to include relevant events which occurred after as well as before
any previously fixed completion date, and also that when considering delay events which occur in a period of culpable delay,
the contractor will be entitled to an extension of time on the net method of extension (sometimes referred to as the "dot on"
principle), which allows the incremental time lost for the new event to be added back to the previously extended completion
date, rather than allowing an extension of time to the date on which the late instructed work is completed. In other words, the
gross method of extension was disapproved. As Nicholas Carnell8 has observed:

"In the context of the power to review it was contended that on a proper construction of clause 25.3.3, the power to review
could only be exercised to grant the new completion date at a future date. Mr Justice Colman rejected this proposition, and held
that the duty was to review the net extension to which the contractor was due, and that this could in many instances result in
the completion date being fixed at a date prior to the date on which the review had taken place."

Thus the architect was and is not precluded from making a retrospective assessment of delay.

A brief examination of causation and concurrent delay

The claimant is under the legal and evidential burden of proving the nexus between the event, or the cause, and the delay to
completion, or the effect. The contractor must therefore demonstrate cause and effect. Questions of causation commonly arise
in both contract and tort cases, but the authors have limited this part of this article to a review of the recent developments
concerning the determination of entitlement to extensions of time where questions of concurrent delay arise.

The courts now generally favour the "common sense" approach to dealing with matters of causation. However, this does not
provide a very helpful answer to how liability will be allocated between competing causes where one of the causes is not the
fault of either party or is a delay for which, in breach of contract, the contractor is responsible. There are a number of shipping
cases concerning insurance claims which support the application of the dominant cause approach. Indeed this is the approach
preferred by Keating on Building Contracts, which says:

"The dominant cause approach is supported as indicated above by authority of great weight in insurance cases. It is thought that
the principles, so far as they apply, apply to contracts generally. It is accordingly submitted that the dominant cause approach
is or should be the correct approach, as the law now stands, for Case C and for case B also, unless exceptionally the contract
*Const. L.J. 228 on its true construction provides an explicit answer without sophisticated analysis."9

Case B, as postulated by Keating on Building Contracts, 10 concerns claims for payment under the contract for delay resulting
from variation instructions where there is a competing cause of delay which could be no one's fault or the contractor's own
delay in breach of contract. Case C provides for the same situation but where the contractor is instead claiming damages for
breach of contract.

Keating on Building Contracts 11 does, however, observe that in H Fairweather & Co v London Borough of Wandsworth 12 the
court considered obiter that the dominant cause approach was not correct. This case concerned an arbitration under the JCT 63
form of contract, in which the arbitrator had applied the dominant cause approach to deciding that a strike causing 81 weeks of
delay was dominant and that no time should be allocated to the 18 weeks of antecedent delays claimed by the contractor. His
Honour Judge Fox-Andrews Q.C. remitted the relevant part of the award to the arbitrator, stating:

© 2021 Thomson Reuters. 5

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

""Dominant' has a number of meanings: "Ruling, prevailing, most influential.' On the assumption that condition 23 is not solely
concerned with liquidated or ascertained damages but also triggers and conditions a right for a contractor to recover direct loss
and expense where applicable under condition 24 then an architect and in his turn and arbitrator has the task of allocating, when
the facts require it, the extension of time to the various heads. I do not consider that the dominant test is correct. But I have
held earlier in this judgement that the assumption is false. I think the proper course here is to order that this part of the interim
award should be remitted to Mr Alexander for his reconsideration…."

In his article on concurrent delay, John Marrin Q.C.13 observes that, in light of the particular terms of the JCT contract and the
fact that the architect has discretion to determine contractual entitlement to extensions of time, it would be most unlikely that
the architect would deprive the contractor of an extension of time in respect of the particular period if that contractor had a right
to recover loss and expense in respect of the same period. He goes on to say that it is thought that the problem envisaged will
virtually never occur and that for these reasons the courts in England are unlikely to adopt the dominant cause approach.

So how is the situation to be resolved where there is a concurrent effect contributed to equally by two competing causes, such
as for example where the employer has delayed the work by instructing additional work, but where the contractor is in culpable
delay?

The problem with the dominant cause approach, as indicated by the Fairweather case, is that it necessarily requires a choice
to be made between one cause or another. Given that the standard forms of contract allow the contractor an *Const. L.J. 229
extension of time and loss and expense or costs for employer-caused delay and the employer is entitled to liquidated damages
for contractor-caused delay, the dominant cause approach will inevitably lead to injustice to one of the parties. In this situation,
why should the employer be entitled to liquidated damages for his own default, and why should the contractor be entitled to
loss and expense for his own default? It would be consistent with the decision in Peak v McKinney 14 for the employer not
to be entitled to liquidated damages.

An approach to dealing with this conundrum was first addressed in the case of Henry Boot Construction (UK) Ltd v Malmaison
Hotel (Manchester) Ltd, 15 in which Dyson J. was required to determine an appeal on pleadings, concerning the extent of the
arbitrator's jurisdiction to inquire into one of the contractor's extension of time claims. The judge set out in his judgment various
areas of common ground between the parties, including:

"… it is agreed that if there are two concurrent causes of delay, one of which is a Relevant Event, and the other is not, then the
contractor is entitled to an extension of time for the period of delay caused by the Relevant Event notwithstanding the concurrent
effect of the other event. Thus, to take a simple example, if no work is possible on the site for a week not only because of
exceptionally inclement weather (a Relevant Event), but also because the contractor has a shortage of labour (not a Relevant
Event), and if the failure to work during that week is likely to delay the Works beyond the Completion Date by one week, and
if he considers it fair and reasonable to do so, the Architect is required to grant an extension of time of one week. He cannot
refuse to do so on the grounds that the delay would have occurred in any event by reason of the shortage of labour."16

Malmaison was considered, and further support was given to this approach by His Honour Judge Seymour Q.C. (in a judgment
later referred to by the Court of Appeal as exemplary) in the case of The Royal Brompton Hospital NHS Trust v Hammond
(No.7) 17 at [85] of his judgment, where he said:

"However, if Taylor Woodrow was delayed in completing the works both by matters for which it bore the contractual risk and
by Relevant Events, within the meaning of that term in the Standard Form, in light of the authorities to which I have referred, it
would be entitled to extensions of time by reason of the occurrence of the Relevant Events notwithstanding its own defaults."

John Marrin concludes that, in dealing with competing employer and contractor caused delay referred to above, the main
contenders are the dominant cause approach and Malmaison approach and that the Malmaison approach is to be preferred.

The authors believe that the present state of English law on the subject of concurrent culpable delay is accurately and succinctly
summarised in the *Const. L.J. 230 following paragraphs of the decision of His Honour Judge Toulmin Q.C. CMG in
Motherwell Bridge Construction Ltd v Micafil Vakuumtechnik 18:

[559] The law relating to extensions of time as a result of delay by the employer has been clarified in two cases--Balfour Beatty
Building Ltd v Chestermount Properties (1993) 32 ConLR 139.

© 2021 Thomson Reuters. 6

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

[560] The basic principle is encapsulated in para 12 of Dyson J's judgment in Henry Boot (70 ConLR 32 at 37):

"First, it is agreed that the analysis of Colman J in Balfour Beatty Building Ltd v Chestermount Properties (1993) 32 Con LR
139, should be applied. In his valuable interpretation of cl 25 of this form of contract, Colman J said, inter alia, that the purpose
of the power to grant an extension of time under cl 25.3 was to fix the period of time by which the period of time available
for completion ought to be extended having regard to the incidence of the relevant events, measured by the standard of what is
fair and reasonable. The completion date as adjusted was not the date by which the contractor ought to have achieved practical
completion, but the end of the total number of working days starting from the date of possession within which the contractor
ought fairly and reasonably to have completed the works.'

[561] In Henry Boot, Dyson J dealt with the questions of concurrent delays and whether it is permissible to consider other
events. In relation to the first question Dyson J said, at para 13 of his judgment (70 ConLR 32 at 37):

"Second, it is agreed that if there are two concurrent causes of delay, one of which is a relevant event, and the other is not,
then the contractor is entitled to an extension of time for the period of delay caused by the relevant event notwithstanding the
concurrent effect of the other event. Thus, to take a simple example, if no work is possible on a site for a week not only because
of exceptionally inclement weather (a relevant event), but also because the contractor has a shortage of labour (not a relevant
event), and if the failure to work during that week is likely to delay the works beyond completion date by one week, then if he
considers it fair and reasonable to do so, the architect is required to grant an extension of time of one week. He cannot refuse
to do so on the grounds that the delay would have occurred in any event by reason of the shortage of labour.'

In relation to the second question, Dyson J held that an architect is not precluded from considering the effect of other events
when determining whether a relevant event is likely to cause delay to the works beyond completion.

[562] In the course of Mr Pye's evidence I made a number of rather off the cuff observations in relation to the causes of delay. I
am satisfied that my approach must be that outlined in the passages from the judgment in the Henry Boot case which I have set
out above. Crucial questions are (a) is the *Const. L.J. 231 delay in the critical path and, if so, (b) is it caused by MBST? If
the answer to the first question is "Yes' and the second question is "No' then I must assess how many additional working days
should be included. If the alleged delay was caused by the default of MBST then they are not entitled to any extension of time.

[563] Other delays caused by MBST (if proved) are not relevant since the overall time allowed for under the contract may well
include the need to carry out remedial works or other contingencies. These are not relevant events since the court is concerned
with considering extensions of time within which the contract must be completed.

[564] I add that the approach must always be tested against an overall requirement that the result accords with common sense
and fairness."

Malmaison and Brompton do not appear to deal specifically with the entitlement to loss and expense, although it would seem to
follow that, where the contractor is in concurrent culpable delay, he will only be entitled to recover the specific additional costs
incurred as a result of employer's delay, which because of the contractor's default will exclude his general time-related costs.
It is noted that this is the approach adopted by the SCL Protocol (2002).19

This approach to dealing with loss and expense in relation to concurrent delay has found support from Lord Drummond Young
in the Scottish Inner House Court of Session case of John Doyle Construction Ltd v Laing Management (Scotland) Ltd (2004).
Paragraphs [10] to [20] of the judgment consider the question of "causation of loss and global claims", paras [14] to [17] in
particular dealing with causation and the apportionment of loss in various circumstances, including situations of concurrent
delay. Relevant extracts are as follows:

"[14] … In the first place, it may be possible to identify a causal link between particular events for which the employer is
responsible and individual items of loss. On occasion that may be possible where it can be established that a group of events for
which the employer is responsible are causally linked with a group of heads, provided that loss has no other significant cause. In
determining what it is a significant cause, the "dominant cause' approach described in the following paragraph is of relevance …

[15] … In the second place, the question of causation must be treated by "the application of common sense to the logical
principles of causation' … In this connection, it is frequently possible to say that an item of loss has been caused by a particular

© 2021 Thomson Reuters. 7

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

event notwithstanding that other events played a part in its occurrence. In such cases, if an event or events for which the
employer is responsible can be described as the dominant cause of an item of loss, that will be sufficient to establish liability,
notwithstanding the existence of other causes that are to some degree at least concurrent …

[16] In the third place, even if it cannot be said that events for which the employer is responsible are the dominant cause of the
loss, it may be possible to apportion the loss between the causes for which the employer is *Const. L.J. 232 responsible and
other causes. In such a case it is obviously necessary that the event or events for which the employer is responsible should be
a material cause of the loss. Provided that condition is met, however, we are of opinion that apportionment of loss between the
different causes is possible in an appropriate case. Such a procedure may be appropriate in a case where the causes of the loss
are truly concurrent, in the sense that both operate together at the same time to produce a single consequence. For example,
work on a construction project might be held up for a period owing to the late provision of information by the architect, but
during that period bad weather might have prevented work for part of the time. In such a case responsibility for the loss can
be apportioned between the two causes, according to their relative significance. Where the consequence is delay as against
disruption, that can be done fairly readily on the basis of the time during which each of the causes was operative. During the
period when both operated, we are of opinion that each should normally be treated as contributing to the loss, with the result
that the employer is responsible for only part of the delay during that period. Unless there are special reasons to the contrary,
responsibility during that period should probably be divided on an equal basis, at least where the concurrent cause is not the
contractor's responsibility. Where it is his responsibility, however, it may be appropriate to deny him any recovery for the period
of delay during which he is in default."

This case indicates, at least in the context of financial losses arising from loss events, a preference in the first place for a
common sense approach to identifying the dominant cause of the loss and then, in the absence of a dominant cause, some sort
of apportionment of loss. However, in common with the SCL Protocol approach, it is suggested that, where the contractor's
own culpable delay is concurrent in effect, then the contractor may be denied recovery of loss for that period.

This has a very important bearing on how delay claims and the resultant costs are analysed. For the purpose of determining the
contractor's entitlement to loss and expense, it is necessary to distinguish periods of delay where the employer's action is the
sole (or dominant) cause of the delay from those where there is a concurrent default on the part of the contractor.

It is important to emphasise the distinction between a matter which would entitle the contractor to an extension of time under
the contract, such as a relevant event in accordance with JCT 98, from a matter which actually causes delay to completion
of the work. For example, it is tempting for a contractor to argue that information issued late by the architect, relative to the
information release schedule, notwithstanding the general progress on site, will be a concurrent delay for which the contractor
should receive an extension of time. The contractor will only be entitled to an extension of time where the event affects the
completion date, and only to the extent that it causes incremental delay to the completion date, rather than to the extent by which
information is late relative to the information release schedule. This point was emphasised in the Brompton case.20 *Const.
L.J. 233 There is then a clear distinction between concurrent cause and concurrent effect. Indeed, it is noted that this distinction
is recognised in the extension of time provisions (cl.12) in the JCT Major Projects Form of contract, which specifically provides
for the entitlement of the contractor to an extension of time notwithstanding the fact that there may have been a "concurrent in
effect of a cause" for which there is no entitlement to an extension of time, i.e. the contractor's own culpable delay.

A resource-based quantification of delay

Construction projects are invariably highly labour-intensive, and so when one is looking to establish a measure of delay and its
effect, one is almost certainly involved in considering the availability of resources to cope with additional or changed work and
the effect of such changes on that resource. In the absence of very clear records, it may be necessary to make an approximation
of the impact of delay on the available resources. Here lies a danger. If one takes, by way of an example, a variation for some
additional joinery work which occupies two joiners for one week, then the delay to those two joiners is one week. If the particular
work they are engaged in happens to be entirely critical then this would equate to a critical delay of one week to the completion
date. But what happens if the work is not obviously critical but simply represents an increase in scope of work for that particular
trade? The first point is that one has to demonstrate that this particular trade was critical at the time of the event. One then has
to establish a measure of extent of the effect of that particular delay on the critical path.

It is not unusual for those who are involved in making claims for delay to inflate the claim by overstating the effect of an event
by equating the effect of the delay to the specific resources engaged in the additional work rather than the effect on all the
resources engaged in that particular trade at that point in time. This was precisely the manner in which the expert witness for

© 2021 Thomson Reuters. 8

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

the claimant approached the quantification of delay in the case of McAlpine Humberoak Ltd v McDermott International Inc
(No.2), 21 in which Lloyd L.J. stated as follows:

"… he went through each of the VOs, and arrived at a number of days or weeks, based either on the time actually taken to
carry out the extra work or on a calculation….

*Const. L.J. 234 With perfect logic, he added a claim for night working, for his method of calculation assumed the same work
force working one night shift throughout, as originally planned without any night shift….

One cannot help admiring the way in which [the expert witness] set about his task. It may be that there was no other way in
which it could have been done. But it suffers from two major defects. So far as the first stage of calculation is concerned, [the
expert's] approach assumed that if one man was working for one day on a particular VO, the whole contract was held up for that
day. The point can be illustrated by VO 64, described by [D's counsel] as the reductio ad absurdum of [the expert's] method.
The claim was for £39, being the cost of an inspector carrying out a lamination check on one of the secondary tees on W3.
The inspection was carried out on 12 May 1982. It took no more than an hour. Yet [the expert] has allowed the whole day's
delay to the whole of the work.

The second, and even more serious defect relates to the second stage of the calculation. It assumes that the whole of the workforce
planned for a particular activity was engaged continuously on that activity from the day it started to the day it finished. This
was hardly likely to be so, quite apart from the labour difficulties which the plaintiff suffered in phases 2 and 3 of the contract
and the decision by the plaintiff towards the end of the contract to run down the labour force."

A similarly flawed approach to the calculation of delay was advanced in the case of Ascon Contracting Ltd v Alfred McAlpine
Construction Isle of Man Ltd. 22 His Honour Judge Hicks Q.C. stated (at para.[20]) as follows:

"[The expert's] second main technique was to translate cumulative hours recorded on daywork sheets as spent on salt washing
or mud clearing into equivalent working days and to treat those as further justification for attributing that part of the days lost to
water ingress. Again, however, that conclusion simply does not follow. First, the labourers involved in those activities were only
a part, and usually a small part, of the work force, the rest of which was not necessarily idle (and indeed, so far as the records
have been examined with this point in mind, was usually not so in fact), so even in purely arithmetical terms and logic is flawed
if an hour spent by, say, one or two labourers is equated with an hour lost to the whole project. Second, time lost in this way could
in principle be made up by late working (as, again, often seems to have happened in practice). Third, it is wrong in principle
to "carry forward' a part day if the next element on the critical path is a concrete pour. A pour, once embarked upon, must be
completed before the end the working day. Either it is commenced on the due date, however late, and completed, or it has to be
postponed by a complete day or days; there simply cannot be a part-day loss on that score to be added to other part days."

Judge Hicks was not persuaded that either party had satisfied the burden of proof in relation to their allegations about the delays
and observed that he was left largely to his "own devices". His starting point for assessing the measure of *Const. L.J. 235
delay was to find that two labourers were engaged for 105 hours on the delay work, which equated to 50 elapsed hours, but when
spread over the average labour force of about 10 he assessed that the delay would have been a little over one day. However, he
observed that one day was too low, because it wrongly assumed that, apart from the diversion of the labourers directly involved,
perfect efficiency could be maintained. He allowed three days for the delay.

From the consideration of both of these cases, it is clear that, when making such an assessment of the effect of an event on a
small part of the labour force, one must also have regard (where appropriate) to the entire labour force available for that type
of work at that particular time.

Case law in which delay analysis methodologies are considered

The first notable case in which delay analysis techniques were considered was the Court of Appeal decision in McAlpine
Humberoak Ltd v McDermott, 23 in which the expert witnesses for the plaintiff sub-contractor (McAlpine) and the defendant
main contractor (McDermott) both used critical path analysis techniques to analyse the effect of delays in the provision by
McAlpine of nine steel pallets forming part of the weather deck for a tension leg off-shore platform. The Court of Appeal
overturned the decision at first instance that the contract had been frustrated by the number of instructions issued to the plaintiff.
At first instance, McAlpine's expert carried out a somewhat theoretical exercise which appears to have assumed that all the delay
he had identified in relation to each instruction was critical and impacted in full upon the completion date without considering

© 2021 Thomson Reuters. 9

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

the event in the context of what was actually happening at the time and without considering what other work was being carried
out at that time. McDermott by contrast took a much more fact-based approach to the analysis of delay, about which Lloyd
L.J. said as follows:

"When the defendant's witnesses came to give evidence, they undertook the task which was never undertaken by the plaintiff,
of tracing the impact of every drawing revision, VO and TQ…. The judge [at first instance] dismissed the defendants' approach
to the case as being "a retrospective and dissectional reconstruction by expert evidence of events almost day by day, drawing
by drawing, TQ by TQ and weld procedure by weld procedure, designed to show that the spate of additional drawings which
descended on McAlpine virtually from the start of the work really had little retarding or disruptive effect on its progress'. In
our view the defendants' approach is just what the case required."24

This provided guidance in relation to the proper approach to be taken to these situations. The analysis must primarily be a factual
one that shows what actually happened, so that the events and their effects should be examined at the time they occur in the
context of the work actually going on at the time. This therefore relies on good records being available to support the claim.

In the case of Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd, 25 which considers the operation of
cl.25 under the JCT 80 standard form, it was held by Dyson J. (as he then was) that

*Const. L.J. 236 "The respondent was entitled to respond to the claim both by arguing that the variations, late information
and so on relied on by the claimant did not cause any delay because they were not on the critical path and positively by arguing
that the true cause of delay was other matters".

This confirms the view that, in order to establish that an event has affected the completion date, it must be shown that it falls
on the critical path.

In Motherwell Bridge Construction Ltd v Micafil Vakuumtechnik, discussed above, Judge Toulmin provided, at para.[562], yet
further confirmation of the requirement to establish the critical path:

"Crucial questions are (a) is the delay in the critical path and, if so, (b) is it caused by MBST? If the answer to the first question
if "Yes' and the second question is "No' then I must assess how many additional working days should be included."

Some means by which the critical path can be identified and shown is therefore required. Although the emphasis appears to be on
an examination of what actually happened, neither of the above passages makes it clear whether the critical path being referred
to is the apparent critical path at the time of the event or the ultimate overall as built critical path evident at the completion
of project.

The passage from Henry Boot referred to above also points to some of the principal defences to a delay claim. In order to show
that an event was not on the critical path, the defendant has to argue that the claimant's version of the critical path is incorrect
and must prove on the balance of probabilities that the critical path in fact went elsewhere. Of course, it will also be appropriate
to investigate whether on the facts the event actually caused a delay and whether it had any consequential effects, as well as
looking for other events that may have driven progress at that time and therefore have been the true causes of delay. A claimant
when faced with such a defence should not make the mistake of assuming that, if the defendant fails to satisfy the legal and
evidential burdens of proof in favour of its alternative view of things, then the claimant's allegation of the true cause of delay
must be accepted by default. This sort of argument was not accepted by Judge Hicks in the case of Ascon Contracting Ltd v
Alfred McAlpine Construction Isle of Man Ltd, 26 where he stated at para.[21] that

"It is Ascon which is seeking an extension of time and must establish a cause of a quantified period of delay entitling it to
that extension".

Most disputes about extensions of time arise after the works are complete and often, at least under the JCT 98 and ICE 7th
forms of contract, once the architect or engineer has completed his final review of the extensions of time due to the contractor.
The dispute in such circumstances is about the overall extension of time granted as a result of the final review process. The
task for the court (and therefore for the expert witnesses) is more likely to involve looking at what actually happened, therefore
requiring some sort of as-built programme.

© 2021 Thomson Reuters. 10

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

*Const. L.J. 237 In the case of Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd, 27 which considers
the operation of cl.25 under the JCT 80 standard form of contract, Dyson J. stated at para.[15] that

"It seems to me that it is a question of fact in any given case whether a Relevant Event has caused or is likely to cause delay
to the Works beyond the Completion Date … ".

This is where extension of time claims can go wrong. The basic factual matrix is often not sufficiently established or understood
when the claim is prepared, with the result that the proper context in which an event occurred is often ignored when alleging
that an event has delayed the completion date. This is before deciding whether anything can be added by the use of critical
path analysis.

The above passage indicates that the courts are concerned primarily with what has actually happened rather than considering
any sort of analysis that may be based on some speculation about what would or could have been the effect at the time the
event occurred. The view has been expressed by some commentators that judges and arbitrators are really looking to get into
the facts in order to find out what really happened on the site and to identify the real causes of delay. It is important to recognise
that there is a distinction between what really caused delay and a contractor's entitlement to an extension of time in accordance
with the terms of the contract.

It is also worth adding that, when faced with difficult situations of causation or (by analogy) difficult-to-understand prospective
delay analyses, the courts are likely to adopt a "common sense" approach28 to deciding a matter, which is likely to be informed,
not by what might have happened, but by a common sense approach to what actually happened.

On the other hand, a the use of a forward-looking or prospective method of delay analysis, such as time impact analysis, which
identifies the expected effect of an event at the time it occurred, overcomes the problem that commonly occurs in reality, namely
that the effect of an event is often subsumed or overtaken by subsequent events.

In addition, adjudication has made the resolution of disputes on an interim basis much more readily available. The contractor
may therefore decide to refer to adjudication early decisions by the architect of extensions of time which may be awarded before
completion and therefore before the combined effect of all the events can finally be measured. In this situation a prospective
method of delay analysis may well be appropriate.

The case of Balfour Beatty Construction Ltd v The Mayor and Burgess of the London Borough of Lambeth 29 concerned a
challenge to the enforcement of an adjudicator's decision on the basis that, in reaching his decision, the adjudicator had failed
to act fairly and had breached the rules of natural justice by preparing his own collapsed as-built analysis in the absence of one
from the referring party, but had done so without giving the responding party an opportunity to comment *Const. L.J. 238 on
the methodology or his approach. In reaching his decision, His Honour Judge LLoyd Q.C. observed at para.[30] that

"If it [adjudication] is to be utilised effectively, it is essential that the referring party gives the adjudicator all that is needed in
a highly manageable form. From the material available to me, it is clear that BB did little or nothing to present its case in a
logical or methodical way. Despite the fact that the dispute concerned a multi-million pound refurbishment contract, no attempt
was made to provide any critical path. The work itself was no more complex than many other projects where a CPN [critical
path network] is routinely established and maintained. It seems that BB had not prepared or maintained a proper programme
during the execution of the works. By now, one would have thought that it was well understood that, on a contract of this kind,
in order to attack, on the facts, a clause 24 certificate for non-completion (or an extension of time determined under clause 25),
the foundation must be the original programme (if capable of justification and substantiation to show its validity and reliability
as a contractual starting point) and its success will similarly depend on the soundness of its revisions on the occurrence of every
event, so as to be able to provide a satisfactory and convincing demonstration of cause and effect. A valid critical path (or paths)
has to be established both initially and at every later material point since it (or they) will almost certainly change. Some means
has also to be established for demonstrating the effect of concurrent or parallel delays or other matters for which the employer
will not be responsible under the contract."

Contrary to the discussion above about the court's tendency to be concerned with what actually happened, this appears to be
advocating the time impact analysis methodology, but warns of the need to be able to justify and validate the original programme
and the requirement of sound revisions to it at the occurrence of each event (requiring consistent and accurate progress data).
This is consistent with the guidance given in the SCL Protocol,30 which confirms that the time impact analysis method will

© 2021 Thomson Reuters. 11

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

not be appropriate if the planned programme is not sufficiently detailed or has not been regularly updated with progress data.
The above passage does not therefore appear to rule out any of the other methods of analysis (such as collapsed as-built or the
planned-impacted methods) and provides no assistance as to how concurrent or parallel delays are to be dealt with.

However, the application of the method of analysis known as time impact analysis or windows analysis involving the generation
of regular updates to the programme and therefore multiple iterations of the programme is not without potential difficulty. Some
of these difficulties were highlighted in the recent case of Skanska Construction UK Ltd v Egger (Barony) Ltd, 31 in which His
Honour Judge David Wilcox was not well disposed to the evidence presented by one of the delay analysis experts who had
produced a time impact analysis and a large report that the judge described as a work of great industry. It also appears that the
expert had made mistakes in the base programme which he had had to recreate with logic in order to apply the time impact
analysis technique. In the final *Const. L.J. 239 analysis, Judge Wilcox preferred what appears to have been the simpler and
more factually based approach of the other expert.

It is clear that, in order to determine whether an event affected the completion date, it is necessary to determine whether the
event affected the critical path. But a further question is whether the architect has to make use of critical path analysis to inform
his or her opinion about entitlement or whether he or she can simply form an impression about what the critical path is at the
time of the event.

The extent to which an assessment of delay may be impressionistic

The obligations of the employer's agent when considering the contractor's entitlement to an extension of time are usually defined
in subjective terms. For example, in the case of the JCT 98 Standard Form, in accordance with cl.25, if the architect is of the
opinion that the event alleged by the contractor to have caused delay is a relevant event, and that the completion of the works
is likely to be delayed thereby beyond the completion date, then the architect is required to give such an extension of time for
that event as is fair and reasonable. The process of forming an opinion and deciding upon what is fair and reasonable are both
subjective requirements that imply the exercise of some degree of discretion on the part of the architect.

Further, in the authors' view, critical path analysis can only ever be regarded as a model that approximates the sequence and
duration of the operations and activities on site. The perfect model would follow each resource around the site and show what
it was doing and in what location and the sequence in which it carried out its work. Records are invariably not available at this
level of detail, and further analysis at this level may involve tens of thousands of operations, any meaningful analysis of which
would be impossible. Critical path analysis therefore has, at each level, to be a summation of groups of like operations. The
higher the level of the analysis and the smaller the number of activities shown on the analysis, the easier it is to follow and
understand but the higher the level of summation and therefore probably the higher the level of approximation. There is always
therefore likely to be some level of impressionistic assessment applied to decisions about the extent of extensions of time, even
where critical path delay analyses form the basis of such decisions.

However, in John Barker Construction Ltd v London Portman Hotel Ltd, 32 it was said that, in exercising his duty under cl.25,
the architect, or contract administrator, must undertake a logical analysis in a methodological manner of the impact of the
relevant events upon the contractor's programme. The application of an impressionistic, rather than a calculated and rational,
assessment is not sufficient.

John Marrin Q.C. has expressed the following view in relation to this decision:

"… indeed, there are those who'd say that the real point behind the case is that in practice Mr Recorder Toulson was calling
for all significant extension of time assessments to be done by some CPM method, which seems to have some difficulties
associated with it.

*Const. L.J. 240 One point is that there are lots of rather modest disputes in which the cost of that approach would simply
be not worth it.

Secondly, there are several forms of contract which seem to be less than wholly amenable to such methods. One takes the JCT
Standard Form, they have as I've suggested, in some places built into them, apparently something in the nature of a discretion
on the part of architect; that is to say that once he's undertaken whatever analysis and research he needs to get a view of the
extensions of time and the incidence of delay, he then applies what I have called a discretion, which is no more and no less than
asking himself a question, it is fair and reasonable that there should be an extension of time in these circumstances? Where you

© 2021 Thomson Reuters. 12

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

have a contract written in that way, and there are many of them, it seems that by and large, the final answer on extension of
time is not one which can logically be developed by the use of computer program software and can only in the end be resolved
by the exercise of some sort of discretion."

The John Barker case was considered in the recent case of Balfour Beatty Construction Ltd v The Mayor and Burgess of the
London Borough of Lambeth 33 in which, although the point was not decided, it was contended by the defendant at para.[21] that

"In the context of a dispute about the time for completion a logical analysis includes the logic required for in the establishment
of a CPN [critical path network]".

However, the question of what was required of the architect when operating cl.25 of JCT 1980 was also explored in The Royal
Brompton Hospital NHS Trust v Hammond (No.7). 34 This was a case in which it was alleged that the architect had been negligent
in awarding extensions of time. Judge Seymour stated at para.[32]:

"it was plain from the evidence called at the sub-trial on behalf of the Claimant, in particular that of Mr. Gibson, who, of course is
a programming expert, that there are a number of established ways in which a person who wishes to assess whether a particular
event has or has not affected the progress of construction work can seek to do that. Because the construction of a modern
building, other than one of the most basic type, involves the carrying out of a series of operations, some of which, possibly, can
be undertaken at the same time as some of the others, but many of which can only be carried out in a sequence, it may well not
be immediately obvious which operations impact upon which other operations. In order to make an assessment of whether a
particular occurrence has affected the ultimate completion of the work, rather than just a particular operation it is desirable to
consider what operations, at the time the event with one is concerned happens, are critical to the forward progress of the work
as a whole. On the evidence of Mr. Gibson and Mr. Luder the establishment of the critical path of a particular construction
project can itself be a difficult task if one does not know how the contractor planned the job. Not only that, but the critical path
may well change during the course of the works, and almost certainly *Const. L.J. 241 will do if the progress of the works is
affected by some unforeseen event. Mr. Gibson frankly accepted that the various different methods of making an assessment of
the impact of unforeseen occurrences upon the progress of construction works are likely to produce different results, perhaps
dramatically different results. He also accepted that the accuracy of any of the methods in common use critically depends upon
the quality of the information upon which the assessment exercise was based. All of this does, of course, emphasise the vital
point that the duty of a professional man, generally stated, is not to be right, but to be careful…. His conduct has to be judged
having regard to the information available to him, or which ought to have been available to him, at the time he gave his advice
or made his decision or did whatever else it is that he did."

The above passage raises a number of interesting points. The first is that it is far from clear that a critical path analysis is always
required or merited. In the case of certain types of delay it may be so plainly obvious that a delaying event has affected the
critical path that provided such an event is properly evidenced and based in fact and is a relevant event then the contractor will
be entitled to the time. It may well be valid for the architect to form an impression of the critical path and the effect of a delay
on that path without undertaking his own critical path analysis. In fact it is not practical to suggest that an architect must carry
out a full critical path delay analysis exercise every time he or she has to consider an extension of time.

In practice, of course, it is preferable for the contractor to present some form of critical path, ideally with an as-built programme,
so that there is an indication of which activities drove the completion date. Further, if the architect's decision is not accepted,
then a third-party tribunal, who has no prior knowledge of the project, has to be persuaded of the merits of the contractor's
claim, generally through some sort of delay analysis.

The second point is that there are various techniques for the analysis and presentation of delay claims and it is essential to
recognise that these various methods can produce different results. The authors would go further and make the point that, in
the hands of two different delay analysts, the same method of analysis will almost certainly produce different results, because
of the many variables and subjectivity involved in performing such analyses. It may also be the case that the analysts are not
applying precisely the same methodology even though they may give the same label to the technique which they are applying.
This is also likely to produce different results.

Finally there is an inherent difficulty in asking a third-party tribunal to make a decision about what is a fair and reasonable
extension of time when that tribunal has not, unlike the architect or engineer, previously had any involvement in the project.
Critical path analysis is a calculated approach to determining entitlement with reference to a logic linked model of the operations,
their sequence and interrelationships. It has to be questioned whether such a calculated model can ever truly determine the

© 2021 Thomson Reuters. 13

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

subjective question of what is fair and reasonable. In the authors' view, it often does not. However, the use of such techniques can
greatly assist in providing a better understanding of the facts and the interrelationship of the various operations or activities on
site, and can greatly assist in determining what was the critical path and therefore in deciding what on the balance of probabilities
is fair and reasonable.

Barrister, Atkin Chambers.

Director, Brewer Consulting (www.brewerconsulting.co.uk).

(emphasis added)

Footnotes

1 R. A. Palles-Clark, "The Use

of Critical Path Analysis to
Prove Claims for Delay",
Dissertation submitted in
part fulfilment of an MSc
degree in Construction Law
& Arbitration, King's College
London, September 2003 ((c)
Centre of Construction Law &
Management, Kings College
London and Robert A. Palles-
Clark, 2003)
2 R. A. Palles-Clark, "The value
of critical path analysis in
proving delay claims" [2002]
Construction Law Review
41-42 (A Supplement to Civil
Engineering Surveyor).
3 R. A. Palles-Clark, "Problems
with using critical path
analysis for proving delay
claims" [2003] Construction
Law Review 47-48 (A
Supplement to Civil
Engineering Surveyor).
4 Delivered by Andrew Burr
at the Pickavance Consulting
Masterclass in delay and
disruption management on
May 21, 2004.
5 R. A. Palles-Clark, n.2 above,
at p.41.
6 Stephen Furst, Vivien Ramsey
et al., Keating on Building
Contracts (7th ed., Sweet and
Maxwell, London, 2001),
p.134, para.20-203, in the
commentary by Adrian
Williamson.
7 Balfour Beatty v Chestermount
Properties (1993) 62 B.L.R. 1.
8 Nicholas J. Carnell, Causation
and delay in construction
disputes (Blackwell Science,
Oxford, 2000), p.85.
9 n.6 above, at p.248, para.8-31.
10 ibid. at p.245, para.8-22.

© 2021 Thomson Reuters. 14

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

11 ibid. at p.248, fn.97.

12 H Fairweather & Co v London
Borough of Wandsworth
(1987) 39 B.L.R. 106.
13 John Marrin, "Concurrent
Delay" (2002) 18 Const.
L.J. 446 (based on a paper
delivered to the Society of
Construction Law in London
on February 5, 2002).
14 Peak Construction (Liverpool)
v McKinney Foundations
(1970) 1 B.L.R. 111.
15 Henry Boot Construction
(UK) Ltd v Malmaison Hotel
(Manchester) Ltd (1999) 70
Con LR 32.
16 See ibid. at 37, [13].
17 The Royal Brompton Hospital
NHS Trust v Frederick
Alexander Hammond (No. 7)
(2001) 76 Con. L.R. 148.
18 Motherwell Bridge
Construction Ltd v Micafil
Vakuumtechnik (2002) 81 Con
L.R. 44.
19 The Society of Construction
Law Delay and Disruption
Protocol (The Society of
Construction Law, Oxford,
2002), ss.1.4 and 1.10.
20 The Royal Brompton Hospital
v Frederick Alexander
Hammond, n.17 above,
in which Judge Seymour
considered the proper
approach to the assessment of
extensions of time particularly
at [31], where, with reference
to the Malmaison case, he
provided some guidance
on what is meant by
concurrency:"However, it is,
I think, necessary to be clear
what one means by events
operating concurrently. It does
not mean, in my judgment,
a situation in which, work
already being delayed, let
it be supposed, because the
contractor has had difficulty
in obtaining sufficient labour,
an event occurs which is a
Relevant Event and which,
had the contractor not been
delayed, would have caused
him to be delayed, but which
in fact, by reason of the
existing delay, made no
difference. In such a situation
although there is a Relevant
Event,
21 McAlpine Humberoak Ltd v
McDermott International Inc
(No.2) (1992) 58 B.L.R. 1 at
25.
22 Ascon Contracting Ltd v
Alfred McAlpine Construction
Isle of Man Ltd (1999) 66 Con.
L.R. 119.

© 2021 Thomson Reuters. 15

The consideration of critical path analysis in English law, Const. L.J. 2005, 21(3), 222-241

23 McAlpine Humberoak v
McDermott International, n.21
above.
24 ibid. at 26 and 28.
25 Henry Boot Construction Ltd v
Malmaison Hotel, n.15 above.
26 Ascon Contracting v Alfred
McAlpine Construction Isle
of Man, n.22 above. In this
case, Ascon was the reinforced
concrete sub-contractor
employed by Alfred McAlpine
on a building project near the
seafront on the Isle of Man.
Ascon argued that unexpected
tidal water ingress had caused
delays to the concrete pours,
whereas Alfred McAlpine (by
way of defence) put forward
one particularised general
allegation that Ascon had not
provided sufficient steel fixers.
27 Henry Boot Construction v
Malmaison Hotel, n.15 above.
28 As was the case, for example,
in Yorkshire Dale Steamship
v Minister of War Transport
[1942] A.C. 691.
29 Balfour Beatty Construction
Lid v The Mayor and Burgess
of the London Borough of
Lambeth [2002] B.L.R.
288: 84 Con. L.R. 1: [2002]
C.I.L.L. 1873.
30 SCL Protocol, n.19 above, at
p.48.
31 [2004] EWHC 1748 (TCC).
32 John Barker Construction Ltd
v London Portman Hotel Ltd
(1996) 83 B.L.R. 31.
33 Balfour Beatty v London
Borough of Lambeth, n.29
above.
34 The Royal Brompton Hospital
v Frederick Alexander
Hammond, n.17 above.

© 2021 Thomson Reuters. 16