DA-A History of Extension of Time

A History of Extension of Time December 2022
Robert Tustin MRICS MSc FCIArb
A HISTORY OF
EXTENSION OF
TIME
From a U.K. perspective

1836-2022
Robert Tustin
16th December 2022
1
CONTENTS
Part 1: Introduction 3
Part 2: The U.K. approach taken up to 1999 4
2.1 The ‘own wrong’ rule and the prevention principle 4
th
2.2 The 19 century construction industry, fixed completion
dates and the move to standard forms 6
th
2.3 Measuring extensions of time in the 20 century 8
2.4 Developments during the 1990s 10
Part 3: Critical Path Analysis 14

3.1 A logical alternative to the conventional approach 14
3.2 The basics of critical path analysis 15
3.3 Understood meaning of critical path in the 20th century 17
3.4 The case law and the SCL’s input 18
Part 4: Parallel delays and theoretical delays (the concurrency
cases) 27
Part 5: The Dominant cause and/or apportionment argument
(an alternative approach to concurrency) 40
Part 6: Conflation of concurrency authorities with the critical
path approach 43
Part 7: First in time concurrency 47
Part 8: Table of cases 53
Part 9: Approaches taken to extension of time in 2022 55
Part 10: Summary 56
Part 11: Appendices 59

Appendix A: A quick look at overseas practices up to 1999 59
Appendix B: Clause 25 of JCT 80 65
Appendix C: Analysis of the basics of Critical Path Method 66
Part 12: Bibliography and Table of cases 79
Bibliography 79
Table of Cases 81
2
PART 1: INTRODUCTION
The author of this paper, has very recently completed a paper or report into
extensions of time practices, called ‘The Wrong Path’. That paper includes a history
of the development of approaches to extension of time in the UK, and also provides
detailed analysis on the applicable provisions of the standard form contracts, the
potential application of general legal principles to liquidated damages, the ‘own
wrong’ rule, a commentary on the imbalance of risks in relation to liquidated
damages in the 21st century, and some analysis on the fundamental principles of
critical path analysis and a look at some practical problems with the implementation
of a critical path approach. That document is close to 200 pages long (plus a likely
addendum).
This paper, aims to be a more digestible alternative to (or for the incredibly keen, an
accompaniment to) that longer paper, with a focus on the historical development of
the critical path and concurrency principles. The historical content is taken from The
Wrong Path and re-presented here with a slightly different structure, abridged where
possible, and in some cases slightly refined.
In a change from the original plan with this paper, some more in depth analysis of
the fundamentals of the critical path method is also included, mainly in Appendix C.
This paper also includes some further new material, with a brief review in Appendix
A of some approaches taken overseas prior to 1999 (which was when things began
to get complicated in the UK). The brief Part 10, also includes a high level historical
summary, which is not included in The Wrong Path. My explanation of the Adyard
case is also slightly tidied up in this paper. The significant new material will also likely
be issued as part of addendum to The Wrong Path.
Other than Appendix A, this document looks at things from a UK perspective. This is
of general interest however for a couple of reasons. Firstly, the UK moved to a
general contracting model – and therefore likely fixed completion dates and
extension of time and liquidated damages clauses – several decades before the US,
so the UK is where the principles of extension of time originally (in modern history at
least) developed. Secondly, the Society of Construction Law Protocol - which is of
international and cross-contract influence – is (in regards to the matters discussed in
this paper) in part an interpretation of English law.
The author’s involvement in the construction industry began with work experience
with a Birmingham quantity surveying firm in 1990. He qualified as a Chartered
Quantity Surveyor in 2006, and completed a Masters degree in Construction Law
and Dispute Resolution at King’s College London (with Merit) in 2007. He became a
Fellow of the Chartered Institute of Arbitrators in the same year. This author aims to
provide an independent voice of reason to the modern construction industry.
It should be noted that the conclusions, points and arguments set out in this
document represent only a point of view or potential point of view.
This report does not consider prolongation costs.
THIS PAPER DOES NOT CONTAIN LEGAL ADVICE. THIS PAPER DOES NOT
PROVIDE ADVICE OR GUIDANCE, IT IS A DISCUSSION PAPER, AND IS NOT
INTENDED TO BE RELIED UPON.
3
PART 2: THE U.K. APPROACH TAKEN UP TO 1999

2.1 THE ‘OWN WRONG’ RULE AND THE PREVENTION PRINCIPLE
In Rede v Farr (1817)1 Lord Ellenborough CJ referred to a, “universal principle of law
that a party shall never take advantage of his own wrong”. Lord Ellenborough was
Attorney General and Lord Chief Justice.
When Lord Finlay repeated the principle in the Privy Council in New Zealand
Shipping Co v Société des Ateliers et Chantiers de France (1919)2, he did so by
reference to principles set down by Lord Coke in the early 17th Century. Such
principles were those which Lord Coke considered as being necessary in order to
defend against conditions which would be “repugnant to the state (i.e. the nation)”3.
From this over-arching policy of law, as stated by Lord Coke, and re-stated in Rede v
Farr and New Zealand Shipping, various discrete and closely related principles can
be seen to have developed.
The “established legal maxim” which ensures that whoever “prevents a thing from
being done shall not avail himself of the non-performance he has occasioned”, was
included in “H Broom, A Selection of Legal Maxims, Classified and Illustrated (8th
Ed)4”, 1874.
In Holme v Guppy (1836) , Parke B held that, “if the party be prevented by the
refusal of the other contracting party from completing the contract within the time
limited he is not liable in law for the default”.
In Dodd v Churton (1897)5 Lord Esher and Lord Justice Chitty held on the same
principle that, “if the building owner has ordered extra work beyond that specified by
the original contract which has necessarily increased the time requisite for finishing
the work, he is thereby disentitled to claim the penalties for non-completion provided
by the contract”.
This is the ‘prevention principle’ in the construction industry, or more generally in

contracts which provide a fixed time for performance.
It can be said that the extension of time clause in one sense cured the mischief
identified by Lords Esher and Chitty, by enabling the Employer to measure an
increase in the, “time requisite for finishing the work” and refix the completion
obligation accordingly.
The approach was repeated by the Court of Appeal in Wells v Army and Navy Co-op
Society (1902)6. In that case there was an extension of time clause which covered
“other causes beyond the contractor’s control” which - perhaps controversially - the
judges held did not go far enough so as to encompass breaches by the Employer.
The Employer’s delays in late handover of the Site and provision of drawings
1
105 E.R. 1188
2
[1919] AC 1
3
This is explained further, by reference to source material in “The Wrong Path” by the author of this paper
4
Singapore judgement of Ng Koon Yee Mickey v Mah Sau Cheong [2022] SGHC(A) 33 paragraph 73
5
1 QB 562
6
KING'S BENCH DIVISION(1902) 86 LT 764
4
therefore set time at large per Dodd v Churton. Vaughan Williams LJ held that, “If in
the contract one finds the time limited within which the builder is to do the work, that
means not only that he is to do it within the time, but it means also that he is allowed
the time within which to do it”.
In Peak Construction (Liverpool) Ltd v McKinney Foundation Ltd (1970) 1 BLR 111,
Lord Justice Salmon held that, “…I can not see how, in the ordinary course, the
employer can insist on compliance with a condition if it is partly his own fault that it
can not be fulfilled: Wells v Army & Navy Co-operative Society Ltd; Amalgamated
Building Contractors v Waltham Urban District Council; and Holme v Guppy”.
Lord Justice Edmund Davies explained it in a slightly different way, saying that7,
“The stipulated time for completion having ceased to be applicable by reason of the
employer’s own default and the extension clause having no application to that, it
seems to follow that there is in such a case no date from which liquidated damages
could run and the right to recover them has gone”. It amounts to the same
conclusion as Lord Justice Salmon, (as explained 3 paragraphs below this one).
The matter was considered again in the Court of Appeal in Trollope & Colls Ltd v
North West Metropolitan Regional Hospital Board [1973] 2 AII ER 260, where Lord
Denning set out the Holme v Guppy principle again, and stated, “It is well settled that
in building contracts - and in other contracts too - when there is a stipulation for work
to be done in a limited time, if one party by his conduct - it may be quite legitimate
conduct, such as ordering extra work - renders it impossible or impracticable for
the other party to do his work within the stipulated time, then the one whose
conduct caused the trouble can no longer insist upon strict adherence to the time
stated”. Clearly Lord Denning’s conclusion that the Employer, “can no longer insist
upon strict adherence to the time stated”, is a finding that time was set at large. This
is the whole basis of his findings. And the findings of the Court of Appeal in Peak v
McKinney, and Dodd v Churton8.
The issue was discussed again in the House of Lords in the much misunderstood
case of Percy Bilton Ltd v Greater London Council [1982] 1 WLR 794. Lord Fraser’s
leading judgement confirmed that the prevention principle approach was correct,
however in that particular case time did not become at large because it was held that
the Employer was not in fact responsible for the matter which had caused the part of
the delay which was not covered by an extension of time clause (see larger
discussion in The Wrong Path).
The logic in all of these judgements is the same. There is no mechanism for
calculating another date from which the damages can start (which should be the end
of the extended contract period), and they can not start from the unextended original
contract completion date, because that original fixed period can no longer be
asserted by the Employer. Once the Employer has by its actions made that date
7
https://mosaicprojects.com.au/PDF-Casewatch/1040_Peak-v-McKinney.pdf Doyles
8
However it is noted that Keating on Building Contracts 5th edition 1991 states (footnote 46 on page 223),
“[1973] 1 W.L.R. 601 at 607 (H.L.) where the majority of the House of Lords said that Lord Denning had been
wrong when, in the Court of Appeal, he said that Dodd v Churton…established that time became at large. The
House did not comment on Wells…or Peak…which were cited to the House in argument…See also the discussion
in Bilton…”. This author has unfortunately not been able to obtain a copy of the House of Lords judgement.
5
unachievable, or extended the necessary period for undertaking the work beyond
that date, i.e. “if the building owner has (for example) ordered extra work beyond that
specified by the original contract (or otherwise caused delay) which has necessarily
increased the time requisite for finishing the work” (Dodd v Churton), then the
completion date falls away. Time must be at large.
The reason why adding an extension of time clause keeps the damages alive, is that
it effectively changes the obligation from one to finish by date A to one to finish by
date B or C, where B and C represents the additional period of events for which the
Employer is responsible. In that way, the obligation (and therefore damages) can be
enforced to the extent that delays to the original date were not on account of the
Employer’s acts.
2.2 THE 19th CENTURY CONSTRUCTION INDUSTRY, FIXED COMPLETION

DATES AND THE MOVE TO STANDARD FORMS
The general contracting model in which all or most of the construction work is let to
one contractor with ‘single point’ responsibility, developed during the 19th century
(i.e. 1800s)9. Prior to the widespread adoption of the general contracting method,
tradesmen were typically appointed by employers directly and it is tentatively
suggested were likely usually engaged on an ad-hoc basis rather than having fixed
completion dates.
This suggestion appears to be supported by the fact that the penalty rule cases only
appear to start in the late 19th century, which logically suggests that fixed damages
clauses were likely few and far between prior to that (and it is unlikely that weekly
liquidated damages would be included in a contract without a fixed completion date).
This theory seems to be further supported by historian Sara E. Wermiel10’s
explanation that,“…the great Victorian builder Thomas Cubitt (1788-1855)..trained as
a carpenter, and around 1812 he began working as a general builder. He handled
the work of his own trade and subcontracted with tradesmen in other fields. But as
he could not control the quality or timeliness of his subcontractors’ work, he
began to employ tradesmen directly and dispense with subcontractors”. This was
Cubitt: the Brunel of construction; the pioneer of the general contracting model, so if
controlling timeliness of performance was an issue for him, then it was probably fairly
typical (which arguably suggests no fixed completion dates).
Hudson on Building and Engineering Contracts 10th edition’s brief commentary on
Duncanson v Scottish Investment Co [1915] SLR 79, implies that by that era (a
century later than Cubitt), some trade contractors had a fixed completion date and
others didn’t.
The contracts which were the subject of the disputes in Holme v Guppy and Dodd v
Churton, were probably something of an outlier even during the 19th century, in that
they contained provisions for a fixed completion date and liquidated damages per
week, but did not contain extension of time clauses.
9
in fact it was a slightly different model as general contractors during the 19th century typically employed
tradesmen, rather than sub-contracting to specialist firms as they do today
10
https://www.arct.cam.ac.uk/system/files/documents/vol-3-3297-3314-wermiel.pdf “...The Rise of the
General Contractor…in the Nineteenth Century”
6
Whilst the proposition that the prevention rule played a part in the development of
extension of time clauses makes perfectly good sense, it is tentatively suggested
that extension of time clauses likely developed initially during the 19th century, in
order to create a viable balance of risks in contracts which (in the new general
contracting model) adopted fixed completion dates and liquidated damages clauses,
and in particular at the very end of the 19th century as the industry began to adopt
standard forms of building contract.
The idea of standard form construction contracts was put forward by the General
Builders Association (the predecessors of the National Federation of Building Trades
Employers) in 1888 where they observed that, “it is not right to bring under the
builder’s consideration legal conditions the effect and value of which he cannot
rightly estimate without consulting his solicitor”11. Conversely, the thinking went, if
standard terms were used, then the builder would know their effect12. The first
recognised standard form identified by JCT’s historians appears to date from 1903
or shortly beforehand, and the RIBA published a Standard Building Contract from
193113
Typically a standard form construction contract will include a triumvirate of provisions
linked to the completion of the project: i) Contract completion date or period ii)
Extension of time provision iii) Delay damages clause to be applied if the contractor
does not finish on time
Keating on Building Contracts 5th edition explained (page 218): “If no time is
specified for completion of the contract a reasonable time for completion will
normally be implied. What is a reasonable time is a question of fact to be considered
in relation to circumstances which existed at the time when the contractual services
were performed.”.
With a fixed completion date, there’s no need for the Employer to prove what a
reasonable time for completion was (at least in relation to the original scope of
Works), because this period is replaced/represented by the period stated in the
contract, as adjusted for Employer risk events. And it’s this adjustment for Employer
events, where the extension of time clause comes in. The extension of time clause
provides for adjustments to be made to the Completion Date in respect of delays
matters which were unaccounted for when the parties agreed the contract, and for
which the Employer took the risk.
Just as the original contract period is taken to represent a reasonable period for
undertaking the contract works, the job of the extension of time clause is
therefore to evaluate a reasonable additional period for completion by
reference to the Employer risks which eventuated. When looked at from this
point of view, it fulfils the same requirement as from the point of view of the
prevention principle, i.e. to add a reasonable period in respect of Employer risk
events. Whichever way you look at it, Contractor ‘delays’ or ‘events’ are irrelevant.
11
2nd edition of “The Standard Form of Building Contract”, a commentary by Derek Walker Smith and Howard
A Close, published in 1953 ( which contained a preface from the Royal Institution of British Architect’s
Chairman on the Joint Tribunal on the Standard Form of Building Contract)
12
The Standard Form of Building Contract 2nd edition, Walker and Close 1953
13
(https://corporate.jctltd.co.uk/about-us/our-history/)
7
2.3 MEASURING EXTENSION OF TIME IN THE 20th CENTURY
The 20th century took a much more relaxed approach to extensions of time than is
seen today. A 1953 commentary14 on the 1939 R.I.B.A. Standard Building Contract
(the predecessor to the Joint Contracts Tribunal, commonly used in the UK in the
2nd half the 20th century and the 21st century) records that a 1948 amendment
added a clause 18A in order to provide extensions of time where the Contractor is
delayed due to shortages of labour or materials beyond its control15.
The dispute in the case of Amalgamated Building Contractors v Waltham Holy Cross
UDC (1952)16, heard in the Court of Appeal, involved the 1939 form The case
principally concerns a point of procedure, but it’s interesting that Lord Justice
Denning quoted from the letter awarding an extension of time, in which the Architect
had stated (emphasis added), “I can not see any reason why your whole contract
should not have been completed by…”. Such a method entails the aggregation of
Employer risk events without reference to Contractor risk events. The approach was
accepted without criticism by Lord Justice Denning17. As we’ve seen already in
Section 2.1 above, a similar approach was taken in the prevention principle cases of
the 1970s and 80s.
The third edition of the then leading authority The Architect in Practice by Arthur J
Willis (1964), does not mention extensions of time at all. It does however include a
very brief review of cost claims in regards to which it states, "The architect has to
remember that he has to interpret the contract fairly between the parties...Some
claims may be due simply to misfortune...and which it may be reasonable for the
building owner to meet ex gratia to a greater or lesser extent".
The 10th edition of Hudson’s Building and Engineering contract, 1970, comprised of
871 pages. By now, 11 pages addressed issues relating to extensions of time.
However, with a focus solely on procedure, none of the discussion considered the
substance of assessments.
In the 1970s and 80s, Contractor’s claims were dedicated to recovering costs. Claim
documents in the 1970s were typically titled, “Additional account for costs and
expenses caused by prolongation of the Contract Works” or similar. Reasons for
delay might be dealt with by generic reference to correspondence. References to
causes of delays in one 97 page claim from 1976, comprised of the following:
14
The Standard Form of Building Contract, Derek Walker Smith
15
18A “If in the opinion of the Architect…the Contractor shall be unable for reasons beyond his control to
secure such labour and materials as may be essential to the proper carrying out of the Works and such inability
on the part of the Contractor shall result in the Works being delayed, then…the Architect shall make…a fair and
reasonable extension of time for Completion of the Works”
16
2 All England 452
17
There was a slight restructuring of the damages and extension of time clauses in 1980, but commentators
never appear to have attributed any significance to them, and in case Denning LJ’s comment was general.
8
That was it! The other 96 ¾ pages addressed the costs and the relevant contract
clauses. Extension of time was taken largely for granted. For avoidance of doubt,
this report does not advocate an approach to prolongation cost claims on this basis!
By the dawn of the 1990s, extension of time was more typically addressed, with a full
written narrative within the claim documents explaining the Employer delays, which
might be supplemented with summaries setting out when the Works could have been
completed bearing in mind the Employer’s delays.
The narratives and summaries would perhaps be accompanied by some hand
written charts, or planned v As Built schedules18:
18
From a 1991 sub-contractor extension of time claim, prepared by claims consultants
9
In a 1992 publication edited by the highly respected Mr John Uff19, a Mr Richard

Winward stated, “In my experience disputes fall into one of two broad categories
namely (i) disputes as to quality (including structural failure) and (ii) disputes as to
price”. There was no mention of liquidated damages or extensions of time.
An Employer actually taking liquidated damages in the 1970s and 80s was
apparently comparatively rare, and the focus remained on the extent to which the
Contractor/Sub-Contractor had incurred additional costs.
However, things were already changing, as Roger Knowles observed in 1992 where
he stated in a published paper20, “Attitudes have undergone a significant change in
recent years. On building contracts there used to be a fair degree of give and take,
the overriding objective being to get the job finished on time. If, despite the best
efforts of all concerned, completion was late, there was often a degree of
understanding…Nowadays it seems that Employers are lying in wait for Contractors
to finish late".
2.4 DEVELOPMENTS DURING THE 1990s
The case of Balfour Beatty Construction Ltd v Chestermount Properties (1993)21,

(“Chestermount”) presided over by Justice Colman, involved (on that particular
project) a very tardy builder and the assessment of extensions of time in the JCT 80
Standard Building contract (See Appendix A).
The project involved the construction of the shell and core of a 7 story office block.
The project was running very late, and the Contractor didn’t have an excuse. Then,
months after the completion date had passed, the Employer/Architect instructed a
variation to undertake fit out works. The Contractor argued (in the alternative, its first
argument having already failed) that the effect of the variation was to excuse it not
only for the delay caused by the variation itself, but for all preceding delay up to that
point, on the basis that on account of the timing of the variation, the project could not
have been finished any earlier even if the Contractor had otherwise been in a
position to finish as scheduled. The Contractor claimed an extension of time to cover
all pre-existing delays.
Justice Colman held that such an approach was invalid (in fact the only reason why
the Employer instructed the additional fit out works in that case was because the
Contractor’s delay to the shell and core meant that it was still on site). In his
reasoning he concluded that in regards to the JCT extension of time clause,
“The underlying objective is to arrive at the aggregate period of time

within which the contract works as ultimately defined ought to have
been completed having regard to the incidence of non-Contractor’s risk
events and to calculate the excess time if any, over that period, which the
Contractor took to complete the works. In essence, the architect is
concerned to arrive at an aggregate period for completion of the
contractual works, having regard to the occurrence of non-Contractor’s
19
Legal Obligations In Construction
20
Recent cases of vital importance
21
(1993) 62 BLR 12
10
risk events and to calculate the extent to which the completion of the works
has exceeded that period.”
The periods applicable to Employer risk events - including the original scope of
works - had to be assessed and aggregated, with that aggregate period then being
deducted from the actual performance period, pursuant to the LDs clause, to arrive
at the overall total period of delay to the project to which Liquidated Damages might
be applied, should the Employer require22.
There’s no mention of calculating the effect of non-Relevant Events, other than in the
final calculation, once the extension of time calculation has been completed.
Perhaps not surprising as this is what the terms suggest, and also what common
sense would suggest. If there are other causes of delay then those delays will come
out in the wash, in the date when the Contractor achieves Practical Completion.
There is NO need to measure the effect of any particular event which is not a
Relevant Event.
Similarly, there seems to have been no reference in the Chestermount case, to a

requirement for the Relevant Event to be on the critical path, indeed the citation
above clearly provides that Justice Colman considered that there was no such
requirement23. A critical path analysis does not calculate “an aggregate period of
time” for non-Contractor risk events (see the discussion on the Adyard case in
Section 3.2 below and also Part 5 of the longer paper ‘The Wrong Path’ by this
author).
H Fairweather v London Borough of Wandsworth (1987)24 case was about which of

competing Relevant Events applied, and whether that affected entitlement to
prolongation costs.
In his chapter titled, “Concurrent and culpable delays”, Eggleston states in 199725,
“It is the relationship of extensions of time to claims for loss and expense or
extra cost which causes most difficulties with concurrent delays. If the only
consideration was, is an extension due or not where there are
concurrent delays, disputes as in the Fairweather case would not arise. All
that would matter would be proving the involvement of a relevant
event.”. Fairweather v London Borough of Wandsworth (1987) concerned
which of competing Relevant Events applied, and whether that affected
entitlement to prolongation costs. The judge in that case took a
dominant cause approach”.
22
It's also worth noting that, as Justice Colman commented, it was confirmed in a case in the New South Wales
Supreme Court (the approximate equivalent of the Court of Appeal), Australian Development Corp Pty Ltd v
White Constructions (ACT) Pty Ltd (1996) that where a Contractor delay pushes the project into a bad weather
window, there is no entitlement to EOT for the weather.
23
Justice Hamblen makes an unsupported contrary assertion in Adyard v SD Marine (2011), but other judges
have not done so.
24
H.Fairweather&Co v London Borough of Wandsworth (1987)
25
Liquidated Damages and Extensions of Time In Construction Contracts, 2nd edition, Brian Eggleston 1997
11
It's important to note that when this was written, the concept of ‘true concurrency’ did
not exist; where Eggleston refers to “concurrent delays”, he is talking about parallel
delays in the broad sense.
Sims 3rd edition (1998) confirmed the same, “Where there are overlapping causes of
delay…the architect can not deprive the Contractor any reasonable extension
for the relevant event, merely because there is an overlapping cause.”
Sims (page 85) also referred to “recent judicial opinion” “…that an architect should
not take into account the contractor’s own delays”. A footnote is given to John Barker
Construction Ltd v London Portman Hotel Ltd 199626 (“John Barker”).
The Judge in that case summarised the steps that an Architect needs to take in
order to calculate extension of time. The author of this report does not have a copy
of this judgement, but there is no indication from any of the texts reviewed which
cover the case, that any requirement was provided that delays need to be on the
critical path. In fact the texts set out the tasks which the court in that case
determined the Architect should take, and they do not mention the critical path.
There was until this point a very simple approach to extensions of time, with the
Architect making an assessment of the extent to which Employer delay events
caused delay beyond the Date for Completion stated in the contract.
This John Barker case however is where things can be seen to have began to
become more complicated. Eggleston27 cites on page 144, the judge as having
stated, “If the Architect made his determination fairly and lawfully…I would not
accept…that either party would be entitled in those circumstances to ask the court to
substitute its opinion for that of the architect. By lawfully, I mean acting within his
power and properly directing himself toward the terms of the contract…”. However,
he went on to say that, “Nor would I agree…that the grounds on which the decision
of the architect can be challenged are limited to bad faith or manifest excess of
jurisdiction (when the architect) was an agent of one party28”.
The judge suggested (for the benefit of the Contractor) that when an Architect is
ascertaining/certifying extension of time entitlement, the following is required:
• A logical analysis in a methodical way
• A calculated rather than impressionistic assessment
• A fairly and rationally based judgment
In an ideal world, that would be the end of the story. The English legal system
maintains its fine and revered reputation around the world for excellence and
delivering justice in a coherent and logical manner, and the construction and
infrastructure industries are left with a simple, low cost way to sort out extensions of
time in a balanced and proportionate way.
Unfortunately for the construction, infrastructure and real estate industries, it proved
in some respects to be only the end of the beginning (we’ve dealt in this paper
proportionately with 160 years of precedent in less than 10 pages, yet the next 25
years take around 40 pages).
26
[1996] 83 BLR 31
27
Liquidated Damages and Extensions of Time In Construction Contracts, 2nd edition, Brian Eggleston 1997
28
The question of whether the Architect is the Employer’s agent in JCT is beyond the scope of this paper.
12
In 1997 Eggleston wrote, “The analysis of causation…remains relentlessly attractive

to academics…In the construction industry, the study of causation and the
application of computers to the process is a thriving business”.
1997 also saw the publication of the legendary “Delay and Disruption in Construction
Contracts” by Mr Keith Pickavance, who would go on to play a leading role in the
Society of Construction Law’s Protocol on Delay and Disruption”.
It is understood29 that the 1997 book explained the use of critical path method for
assessing extension of time entitlement, involving a prediction/calculation of the
additional effect of an Employer delay event upon the date on which Practical
Completion is expected to be achieved (an approach which had already been taken
in the USA, see Appendix A of this paper).
Sims 3rd edition – published in 1998 – said (perhaps reflecting a sense of optimism
at the time about the application of new developments in technology),
“ We firmly believe that all architects and project managers should use
computerised programmes to monitor progress and assist in analysing
claims… If this was done…claim making and understanding would be eased
and disputes avoided or at least made less frequent”.
The following sections of this document to an extent review how that prediction has
worked out.
29
The book is no longer available, even in British Library (this is not implying anything sinister), but it is trite
knowledge that it included critical path
13
PART 3: CRITICAL PATH ANALYSIS
3.1 A LOGICAL ALTERNATIVE TO THE CONVENTIONAL APPROACH

The only alternative to the approach too extension of time discussed in sections 2.1
and 2.2 above which might conceivably have some logical merit, would be to say
let’s forget about the employer delay completely, and just measure the extent to
which the contractor breached its obligation to perform as agreed30.
In other words an assessment of when the contractor would have finished the Works
but for the employer’s delays. By this approach, an extension of time would only be
given for any additional delay to the project caused by the employer on top of any
delays which the contractor in any event caused itself or ‘extra over’ employer delay,
so:
Where Employer delay is not greater than Contractor delay: Damages period =
Actual period - original period
Where Employer delay is greater than Contractor delay: Damages period =
Actual period - original period - (extension of time for: Employer delay - Contractor
delay)
The job of the extension of time clause would be to calculate employer delay AND
contractor delay and subtract one from the other.
There are at least two problems with that approach:
i) In practice, the formula given above is not the approach which the contract
would actually take. Why go to all the trouble of adding up the employer
delay and adding up the contractor delay, taking them away from one
another and taking the result away from something else (which is the only
purpose an extension of time clause could serve), when all that you have
to do is simply add up the delay for which the contractor was itself
responsible? Damages period = Contractor delay. You wouldn’t in reality
have an extension of time clause at all. Irrespective, it is strikingly
obvious that neither approach is what any standard form construction
contract provides for. Standard form construction contracts contain
extension of time clauses which add to the original contract period, periods
for employer risks.
ii) From a damages point of view, the employer has suffered no loss to the
extent that the contractor caused delay does not exceed employer caused
delay31. The project would have been finished no earlier than the
aggregate of the employer delay, even if the contractor delay didn’t exist.
It’s a fundamental principle of almost any legal jurisdiction, that a
contracting party can only recover damages in respect of loss incurred as
30
As discussed in The Wrong Path, the contractor is prima facie responsible for performance whichever party
was to ‘blame’ for the delay but this does not need further consideration here, and contractor and employer
delay is discussed in the normally perceived sense.
31
subject to the point made the footnote on the previous page
14
a result of the other party’s non-performance32. In English law the principle

goes back at least 170 years and has been enforced on multiple occasions
in both the House of Lords, and its successor the Supreme Court in the
21st century alone.
Critical path analysis takes a half way house approach between this method and the
method discussed in sections 2.1-2.2 above, as explained below.
3.2 THE BASICS OF CRITICAL PATH ANALYSIS
The general types of ‘float’ or ‘spare capacity’ in a construction programme (as
referenced in this document) recognised in the 21st century, could be summarised
thus:
• Free float, which can be said to relate to the amount of time that an activity
may be delayed without delaying another activity.
• Total float, which (whilst difficult to define) can be said to relate to the amount
of time that an activity may be delayed without delaying the works beyond the
prevailing contract completion date.
• Terminal float, which can be said to relate to the amount of time that an
activity may be delayed without delaying planned/forecast completion.
This report uses these terms consistently in this way.
Critical path analysis takes a terminal float approach as defined above.
The approach which critical path analysis takes to 35 very simple and rudimentary
hypothetical delay scenarios, is analysed in Appendix C to this paper.
Appendix C demonstrates that the critical path analysis measures one of the
following, depending on the circumstances in which the delay events arose:
• The total delay caused by the employer irrespective of contractor delay, i.e.
delay ‘but for’ contractor delay (the fit for purpose or prevention principle –
properly so called – approach described in Part 1 above), or
• The additional delay caused by the employer on top of contractor delay, or
the ‘extra over’ employer delay, the delay ‘but for’ employer delay, or the total
delay caused by the contractor irrespective of employer delay.
The situations in which the analysis takes the fit for purpose approach, are those
where either i) the as-planned situation had the activity which was in fact hit by the
contractor event, sufficiently in float33 so as to exceed the period by which the
contractor event in fact preceded the employer event, or ii) the employer delay event
happened first.
In other circumstances, it gives entitlement based on the ‘extra over’ delay caused
by the employer, i.e. delay ‘but for’ employer delay.
32
In some jurisdictions this provision is subject to certain exceptions, however they do not (in English law
anyway), appear to apply to critical path analysis (see the discussion in The Wrong Path).
33
The only exceptions are examples 33-35 where there was one path of events only, and the author analysed
concurrency on the basis of creating entitlement where there are parallel competing causes of delay.
15
On most construction projects, where there are multiple delays by both parties,
critical path analysis takes the approach shown in examples 31 and 32, which is a
(meaningless) hybrid between the two basic approaches.
The extent to which the overall result leans towards one method or the other will
depend randomly upon the float which affected activities had on an as-planned
basis, and completely randomly upon the order in which the delay events arose on a
case by case basis.
The critical path approach fundamentally changes the task of assessing extension of
time, from one of measuring the extent to which Employer delay exceeds the fixed
period for undertaking the works (see Part 2 above), to one of measuring the extent
to which Employer delay affects the longest path to the completion of the Works at
the points in time when the Employer events occurred.
Rather than measuring Employer delay beyond the completion date, i.e. the date
when ‘but for’ its own delays, the Contractor could have finished (and even rather
than measuring the date when but for Employer delay, the Contractor would have
finished – see the discussion of the Adyard case below), critical path analysis (as it is
known in 2022) inexplicably and randomly measures Employer delay when it impacts
upon what happens to be - at the particular point in the project which coincides with
the timing of the Employer delay event - the then longest path to the completion of
the Works.
Somehow this illogical, massively resource intensive, disputes charter of an
approach to measuring delay (see ‘The Wrong Path’), has become adopted by the
construction industry as the standard for assessing extension of time entitlement.
Whole global industries have developed in the last 20 years as a result, parasitic
upon (in a non-derogatory sense) the construction and real estate industries, relating
in particular to computer software (reporting, record keeping, notification, programme
calculation and assessment) and delay expert witness. The involvement of the legal
& disputes industries in construction has spiralled . Publishing, legal advertising,
arbitration and adjudication institutions, universities and professional institutions’ fees
and income have thrived and flourished. All of these organisations and/or industries
play their part in and/or benefit from the disputes machine which is centred around
critical path analysis.
All of it is ultimately paid for by the construction and real estate industries, together
with the additional management costs and risk allowances that have to be added to
tenders as a result of effectively arbitrary liquidated damages resulting from the new
approaches to criticality and concurrency, and the related delay game.
It’s not clear what the bill is on all of the above (in particular additional management
and administrative costs, disputes costs and priced risks), but it must be several
billions of dollars or tens of billions of dollars, paid for by a combination of employers
and contractors (and sub-contractors). Whilst putting unacceptable and
unsustainable risk on construction companies, and undoubtedly a significant factor in
contractor liquidations, it is likely ultimately mostly paid for by employers/developers.
Sections 3.3 and 3.4 below attempt to explain how this state of affairs has come
about from a UK perspective.
16
3.3 UNDERSTOOD MEANING OF CRITICAL PATH IN THE 20th CENTURY

Although more widely recognised in the United States, and although undoubtedly
already referred to in project management text books in the UK (it was devised as a
planning tool), critical path analysis was a term that was not recognised in the
English claims and law text books until around the mid-late 1990s. Any prior
reference to criticality in relation to delay claims looks odd to the eyes in today’s light.
The author of this paper has been unable to find any reference to the critical path in
Keating 5th edition (1991) for example. Sims34 looked at claims in 1986 like this: “If
the ‘exceptionally inclement weather’ occurs at a critical stage, an extension of
more than two weeks may, in fact be fair and reasonable; if it occurs at a non-
critical stage, then no extension may be justified”. The word critical is used, but not
in the context that we use it in the 21st century.
Trickey’s35 “The Presentation and Settlement of Construction Claims”, 1983, looked
at criticality in another way, stating with regards to the JCT80 form (page 242), “in
forming his view (as to extension of time entitlement, the Architect) will need to
consider whether the delay is on a critical element and the effect of float in the
Contractor’s programme”.
The reader is then referred to page 30 of the book for more information, where it’s
stated, “…the Architect is first required to form an opinion as to whether the
delay is likely to affect (or has affected) the completion date. A simple delay in
progress during the contract is not sufficient…it must be of such size or on
such an element of the works as will have an effect upon the completion date.”
The reader is then directed to a figure 2.4:
The following explanation is provided:
The point made in Trickey is that in order to create entitlement, it’s not enough for
the directly affected activity to be delayed, but the delay must also use up all free
34
Building Contract Claims, second edition, Powell-Smith & Sims, 1986
35
Geoffrey Trickey was a Partner of Davis, Belfield and Everest (later Senior Partner of Davis Langdon)
17
float for that activity (period Y) and use up Total float (“an effect on the completion
date”). There’s no reference (expressly or implicitly) to a critical path in today’s
sense, or to what this report calls ‘terminal float’ (as defined in Section 3.2 of this
paper above). See also the ‘Sante Fe’ case from America, discussed in Appendix A.
It is understood that what we now know as the critical path approach to extensions of
time, was explained in Mr Keith Pickavance’s Delay and Disruption in Construction
Contracts, published in 1997. For avoidance of doubt, this author does not blame Mr
Pickavance - who put forward an approach which was being used in other
jurisdictions, and which from an academic point of view might be seen to have some
kind of attraction – for the subsequent developments described in this report, but a
history of events would be incomplete without mentioning Mr Pickavance’s
contributions. Perhaps this might be unfair, but whilst there may have been other
agitators, this author suggests that it is the judiciary (which has been in close
relationship with the Society of Construction Law throughout this process36) which
could ultimately be said to have enabled the developments described within this
report.
3.4 THE CASE LAW AND OTHER DEVELOPMENTS

Malmaison (1999)
In the case of Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd
(1999)37 (“Malmaison”), Justice Dyson was considering the jurisdiction of an
arbitrator in relation to an extension of time claim.
The judge stated that, “The negative defence (open to the Employer is that) the
activities were not on the critical path, and on that account did not cause
delay.”. This appears to be the first time in which a critical path requirement was
stated in English law in relation to extension of time entitlement38. None of the cases
set out in Part 2 above take a critical path approach.
It’s noted however that there is no discussion on the “critical path” at all within the
Malmaison judgement. Rather Justice Dyson states – completely out of the blue -
that it is a requirement that the Relevant Event must be on the “critical path” to
create entitlement. He doesn’t give any definition of what he considers the critical
path to be, and taken in the context of the then fairly recent historical references to
the term, for instance Trickey’s description of a “critical element” (see also Santa Fe
in Appendix A), it’s suggested that it’s not impossible that the judge had in his
contemplation a path not to completion of the works (the critical path with which we
are familiar today), but to the then existing Completion Date, i.e. simply a reference
to total float rather than terminal float.
If this is what he was referring to, then this would merely represent the status quo.
We don’t know. There was no finding of facts made as it was only a jurisdiction case.
36
It might not influence their decisions at all, but it is a matter of fact that three judges who have given
judgements on related matters have at one point being Presidents of the Society of Construction Law (which
advocates critical path method).
37
(1999) 70 Con LR 32
38
A 1995 Singapore judgement also required a critical path analysis, and there are judgements in the US which
appear to have taken the same approach (See Appendix A)
18
Royal Brompton (2000)

The case of Royal Brompton Hospital NHS Trust v Frederick A Hammond & Others
(2000)39 (“Royal Brompton”) involved a professional negligence claim in which it was
asserted that the Architect had been negligent in awarding too much extension of
time. Justice Seymour held there had been no negligence.
Justice Seymour stated that,
“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”
and
“it is not open to me myself to decide what activities were or were not critical
to the completion of the Works as a whole.”
Both of these statements are possibly in line with a total float approach (as defined in
this paper in section 3.1 above). There are statements later in the judgement
however in which Justice Seymour is clearly talking about criticality in a terminal float
sense (as defined in section 3.1 above), but this is after he recognises that the
expert witnesses appointed by both parties took this approach.
This paper does not state that Justice Seymour was against the critical path
approach, but at no point in the judgement does he state that it is the correct
approach to take in law, or per the JCT contract. In any case there is again certainly
no contractual reasoning as to why the Relevant Events would need to be on the
critical path to actual completion to create entitlement.
It's also worth noting that when discussing criticality, the judge and the experts
referred to items such as, "Wall and Floor Finishes" as a single activity. At this level
of specificity, the distinction between a total float and terminal float approach to
criticality may have been academic.
The Society of Construction Law (2001)
In 2001, the Society of Construction Law sent out to construction professionals in the
UK, a consultation document which was effectively a draft version of a proposed
Protocol on Delay and Disruption. The document was premised on Employer delay
needing to be on the “critical path” in order to create entitlement, and explained the
use of computer software to calculate the critical path.
“Lambeth” (2002)
The requirement for a critical path analysis was reiterated in Balfour Beatty
Construction Ltd v The Mayor and Burgess of the London Borough of Lambeth
(2002)40. Justice Lloyd (who was at one point President of the Society of
Construction Law) said that for an extension of time claim to succeed, “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…”
39
[2000] EWCH Technology 39
40
[2002] EWHC 597 (TCC)
19
The judge criticised the fact that the claimant, “and its claims consultants…decided
that..it was unnecessary to determine a constantly changing critical path.” He said
that the Contractor had to demonstrate with “certainty” that the dry lining was on the
critical path at the point in time which it was delayed by the Employer.
Still no justification was provided as to why a critical path analysis was required, and
still no judicial definition of what the critical path is, although, it would be impossible
to reasonably argue that the reference to the critical path above could be taken to be
given a meaning other than the modern meaning, and this paper accepts that this
was a finding that a critical path analysis showing the effect of delays upon the
forecast date of actual completion/the longest path to completion of the Works was
required.
The Society of Construction Law (2002)

The Society of Construction Law’s Protocol on Delay and Disruption, which was
published in October of the same year, 2002, provides a definition of “critical path”
(something that had been missing from the judgements), as follows: “The sequence
of activities through a project network from start to finish, the sum of whose durations
determines the overall project duration. There may be more than one critical path
depending on workflow logic. A delay to progress of any activity on the critical path
will, without acceleration or re-sequencing, cause the overall project duration to be
extended, and is therefore referred to as a ‘critical delay”, and explains to the
industry that for extension of time entitlement to arise, the Employer delay has to be
on the critical path41.
‘Hammond 2002’
The next case, also in October 2002, is again Justice Lloyd. For sake of clarity, this
case will be referred to in this report as “Hammond 2002”42 to distinguish it from
Justice Seymour’s Royal Brompton case between the same parties two years earlier.
As we’ve already seen, Justice Lloyd had approved of a rigorous critical path
approach earlier in the year in the Lambeth case. This time, whilst Justice Lloyd
mentions the critical path again, he seems to take a far more relaxed attitude, stating
for example:
“…the employer is ultimately entitled to the benefit of any unused float that the
contractor does not need…In practice however architects are not normally
concerned about these points and may reasonably take the view that, unless
the float is obvious, its existence need not be discovered.” (para 246)
“I cannot be really confident about the extent of actual delay that was caused
to (the Contractor)….That said, it is inconceivable…that the delay in issuing
the co-ordination drawings…did not cause significant delay and disruption to
(the Contractor). (the drawings) ought…to have been ready by mid-June 1987
at the latest so when they were issued …they were 8 weeks late. …the
question is whether they exceeded the float so as to have caused (the
41
In 2017, the Society of Construction Law issued the 2nd edition of their Protocol on Delay and Disruption,
which repeated the critical path approach.
42
Royal Brompton Hospital National Health Service Trust v Hammond & Others [2002] EWHC 2037 (TCC)
20
Contractor) to have finished late, even if there had been no other delaying
events. That is unresolved and it seems unlikely. Doing the best one can, the
potential critical delay created by the eight week delay in issuing the
drawings…appears not to have been materially averted or overtaken by other
events for which (the Contractor) was responsible.” (para 265)
At paragraph 246, Justice Lloyd considers float in the Contractor’s programme and
states,
“What is required is to track the actual execution of the works… if there is then
unused float for the benefit of the contractor (and not for another reason such
as to deal with p.c. or provisional sums or items), then the architect is bound
to take it into account since an extension is only to be granted if completion
would otherwise be delayed beyond the then current completion date.” “...The
architect should in such circumstances inform the contractor that, if thereafter
events occur for which an extension of time cannot be granted, and if, as a
result, the contractor would be liable for liquidated damages then an
appropriate extension, not exceeding the float, would be given. In that way the
purposes of the clause can be met: the date for completion is always known;
the position on liquidated damages is clear; yet the contractor is not deprived
permanently of "its" float”.
This appears to be contrary to what a critical path analysis would provide for.
Indeed, Justice Lloyd even says (para 249), “difficulties…were known but
unquantifiable except as a matter of judgment…That is one of the reasons why
construction contracts appoint…architects, engineers, surveyors or other contract
administrators…as they are best able to gauge such matters…To upset the
judgments of such people in an arbitration or litigation requires similar first-hand
evidence, not desk studies based on documents” !!!!
Goodness knows what the SCL made of that !!! We don’t know because the
suggestion is never cited. Certainly though it does not suggest that Justice Lloyd
envisaged the kind of delay disputes industry which exists today.
Skanska v Egger (2002)
The author of this paper has not read the judgement of Justice Wilcox in Skanska
Construction UK Ltd (formerly Kvaerner Construction Ltd) v Egger (Barony) Ltd
(2002)43, but it is understood that the judge did NOT favour the critical path
approach, and criticised the Employer’s delay expert Mr Pickavance.
It is understood that the judge said that, “He only directly considered critical
delay”, and added, “It is evident that the reliability of Mr Pickavance's sophisticated
impact analysis is only as good as the data put in. The court cannot have
confidence as to the completeness and quality of the input into this complex
and rushed computer project”. Another forgotten judgement.
43
[2002] EWCA Civ 1914
21
Various judgements 2003-2010
The author of this paper has not read the judgement of Justice Wilcox in Great
Eastern Hotel v.John Laing Construction (2005)44, however it is understood that the
judge this time did require a critical path approach. We aren’t privy to what had
changed his mind since 2002.
The author of this paper has not read the judgement of Justice Toulmin in Mirant
Asia-Pacific Construction(Hong Kong) Ltd v.Ove Arup &Partners International Ltd
(2007)45 which focused mainly on other issues, but it is understood that the judge
favoured a critical path approach.
Justice Ramsey in London Underground v. Citylink (2007)46 did NOT favour the
critical path approach. It’s understood that the contract involved terms which were
similar to those used in JCT and that the judge said,
“whilst analysis of critical delay by one of a number of well known methods is
often relied on and can assist in arriving at a conclusion of what is fair and
reasonable, that analysis should not be seen as determining the answer to the
question. It is at most an area of expert evidence which may assist…”.
In the Scottish case of City Inn v Shepherd (2010)47, Lord Osborne’s leading
judgement held that, “while a critical path analysis, if shown to be soundly based,
may be of assistance, the absence of such an analysis does not mean that a claim
for extension of time must necessarily fail.”, The court actually rejected the
Employer’s critical path analysis in favour of a “common sense” assessment made
by the Contractor. It is submitted that a common sense approach and a terminal float
approach are incompatible.
Lord Carloway gave a dissenting judgement, due to a difference in relation to the
position on the related issue of concurrency. On both concurrency and criticality, he
appeared to effectively re-state the Balfour Beatty v Chestermount position, holding
that,“…the delay caused by the Contractor…is irrelevant so far as the contractual
exercise in concerned. That exercise does not involve an analysis of competing
causes. It involves a prediction of the Completion Date taking into account that
originally stated in the contract and adding the extra time which a Relevant Event
would have instructed, all other things being equal”..“If a Relevant Event occurs (no
matter when), the fact that the Works would have been delayed, in any event,
because of a contractor default remains irrelevant.”.
See also the De Beers i.t. case on page 36, which went against critical path.
It can be said that whilst in practice the construction industry was already devoted to
the Society of Construction Law’s critical path approach for assessing extension of
time entitlement in the 1st decade of this century, the judgements (at least in the UK)
did not typically or consistently follow that approach until after 2010.
44
[2005] EWHC 181 (TCC)
45
[2007] EWHC 918 (TCC)
46
[2007] EWHC 1749 (TCC)
47
[2010] ScotCS CSIH 68
22
NEC3 (2005)
It’s noted that in 2005, the Institute of Civil Engineers published the 3rd edition of the
New Engineering Contract suite, known as NEC 3, which was intended to replace
the 2nd edition known as the Engineering and Construction Contract.
As explained in The Wrong Path, NEC 3 is premised on the assessment of

Compensation events which are referenced against updated programmes, and
appear to call for a critical path approach to assessing extension of time. The Wrong
Path discusses (Part 4 of that paper) whether such an approach may be legally
enforceable.
Other than a 2017 case mentioned below, this development has not generally
affected the development of case law described within this paper.
Adyard (2011)
In Adyard Abu Dhabi v SD Marine Services (2011)48 (“Adyard)”, Justice Hamblen

discussed an issue which he referred to as concurrent delay, and applied the
concurrency/ theoretical delay authorities (see Part 4), but he appeared (see Part 6
below) to apply the principles to the separate and wider issue of critical delay.
In other words, what Justice Hamblen was really saying was that in order to create
extension of time entitlement, Employer delay events need to be on the critical path,
but he was using the concurrency authorities to support that argument.
Interestingly (although curiously the case involved a shipping contract), Justice

Hamblen held that in JCT and similar contracts, “the works are defined by reference
to…programmes”, and therefore the critical path principle would apply, but in other
contracts where the work was not defined by programmes, then the critical path
would not apply. It’s not clear why this distinction would be relevant, but it’s worth
noting that it’s difficult to see in any case how in a JCT contract the Works can be
regarded as being defined by programmes. Under some NEC options perhaps, but
not JCT. In Pigott Foundations Ltd v Shepherd Construction Ltd (1993) the judge
relied upon a Court of Appeal authority to find that the sub-contractor was entitled to
plan and perform the sub-contract work as it pleased, provided it finished within the
time fixed for the sub-contract even in a contract which included a requirement for
the sub-contractor to undertake its works reasonably in accordance with the
progress of the main contractor’s works and required submission of a sub-contract
programme (it’s assumed that this was not a sub-contract document, but merely a
programme which was required to be submitted by the Contractor).
Multiple similar authorities have been cited as having reached a similar conclusion49.
It’s noted that as Justice Hamblen’s case did not involve a JCT contract, and
although he had obviously heard of the JCT form and knew that it was used in the
48
[2011] EWHC 848 (Comm)
49
Yorkshire Water Authority v Sir Alfred McAlpine & Son (Northern) Ltd (1985), Holland Dredging (UK) Ltd v
Dredging and Construction Co Ltd (1987) and Blue Circle Industries plc v Holland Dredging (UK) Ltd (1987),
Havant Borough Council v South Coast Shipping Company Ltd (1996).
23
construction industry, he was almost certainly not provided with a copy of such a
contract in evidence (as it had no bearing on this case).
A further justification which Justice Hamblen appears to have offered for taking a
critical path approach (in contracts where the Works are defined by reference to
programmes) is that the critical path method takes a “prevention” approach
(paragraphs 264-265), or at least Adyard’s non-critical path argument failed because
it does not take a prevention approach. This is however misleading for two reasons.
Justice Hamblen says, “On (Adyard’s) case there is no need to prove the event or
act causes any actual delay to the progress of the works. Notional or theoretical
delay suffices. That would seem to involve turning the prevention principle on its
head. The rationale of the principle is that it is unfair for a party to insist on
performance of an obligation which he has prevented the other party from
performing. That necessarily means prevention in fact; not prevention on some
notional or hypothetical basis”.
However a review of the authorities on the prevention principle stretching back more
than 100 years, reveals that they all reach the opposite conclusion.
The point of the prevention principle is that the employer can not insist upon the
agreed fixed period for completion, when the employer’s actions have meant that
that fixed period can not longer reasonably be achieved. It has nothing to do with
additional delay on top of the delay caused by the contractor. This was the position
taken in amongst others Holme v Guppy (1836)50, Roberts v The Bury Improvement
Commissioner (1870)51, Dodd v Churton (1897), Peak Construction (Liverpool) Ltd v
McKinney Foundation Ltd52 (1970), Trollope & Colls Ltd v North West Metropolitan
Regional Hospital Board (1973)53, Percy Bilton Ltd v Greater London Council
(1982)54 (House of Lords).
In Trollope & Colls for example, Lord Denning referred to the situation where, “if one
party by his conduct…renders it impossible or impracticable for the other party to do
his work within the stipulated time” and then stated that, “then the one whose
conduct caused the trouble can no longer insist upon strict adherence to the time
stated”. There’s no mention of whether the contractor was going to finish late anyway.
It’s not relevant to the prevention principle.
Seemingly quite remarkably, Justice Hamblen at one point relies upon this very
citation, where Lord Denning clearly expressed the opposite point of view (in line
with all the other prevention principle cases) to that which Justice Hamblen
endeavours to attribute55.
Justice Hamblen then states that the same principle which he has (it is submitted
wrongly attributed to the prevention principle) also applies to extensions of time. He
says (in relation to what appears to be the correct position, which he has attributed to
50
(1836) 3 M. & W. 387
51
LR 5 C P 310
52
1 BLR 111
53
[1973] 2 AII ER 260
54
[1982] 1 WLR 794
55
This might be quite normal for judges, but this author has noticed on two occasions, the President of the
Society of Construction Law Lord Justice Coulson since attributing meaning to other judges which appeared to
this author on the face of it to be the plain opposite of the statements or findings which the applicable judges
had made, in support of similar principles to those being proposed by Justice Hamblen – See The Wrong Path.
24
Adyard), “It is wrong in principle…It is wrong as a matter of authority because it is

contrary to the principles laid down in the authorities dealing with both extensions of
time and the prevention principle”.
Again this appears to be incorrect. We’ve seen above (Part 2) that it is an incorrect
conclusion in principle. In terms of authorities, we’ve seen that it is an incorrect
conclusion in relation to the prevention principle. As analysed on the previous page,
it is not accurate either in regards to the authorities on extensions of time.
Furthermore, there are multiple Supreme Court and House of Lords cases which
advise as to how damages should be assessed, and they do not do so in the manner
which would be achieved by following Justice Hamblen’s approach (discussed
further in ‘The Wrong Path’).
Furthermore, Justice Hamblen seems to be striving for a ‘but for employer delay’ or
‘extra-over employer delay’ approach to extensions of time as discussed in Part 2 of
this paper above, which asides from being conceptually invalid (as explained in
Section 3.1 above), is not something which critical path method in any case provides
(as explained in Section 3.2 above).
Justice Hamblen (as he then was) refers to the critical path method or treats the
critical path method as being the “prevention” approach. But it is an illusion of
prevention; an illusion of logic. Justice Hamblen states that Adyard’s argument was
turning the prevention principle on its head. The truth is that it is Justice Hamblen
who has turned the prevention principle on its head, and turned logic on its head at
the same time.
Nowhere does Justice Hamblen provide any reasoning for taking an approach which
creates a hybrid between the ‘extra-over employer delay’ outcome and a fit for
purpose outcome, as in fact critical path analysis does (as explained in section 3.2
above and in Appendix C). There seems to be no such justification, either given or
capable of being given.
Various judgements 2012-2018
Walter Lilly & Company Ltd v (1) Giles Patrick Cyril Mackay (2) DMW Developments
Ltd (2012)56 (“Walter Lilly” / “Lilly v Mackay”) was presided over by Justice
Akenhead, who stressed that the English position was that, "One needs to consider
what critically delayed the Works as they went along". He gave an example in
which item A will always take 20 weeks to complete and where item B will always
take 10 weeks. He stated that even if item B takes 19 weeks it will not affect the
actual time to completion, unless the delay to item B itself delays item A or some
other item further down the critical path. Once again, no justification for why was
given.
In Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd [2017],
Justice Deeny took a critical path approach, however this dispute related to the NEC
contract, where critical path analysis appears to be provided for in the contract terms
(Part 4 of The Wrong Path discusses whether this is enforceable).
56
[2012] EWHC 1773 (TCC)
25
Justice Edwards-Stuart, the judge from the De Beers case in 2010, appeared again
in Fluor v Shanghai Zhenhua Heavy Industry Co, Ltd (2018)57. This time, although he
rejected a retrospective methodology to assessment of delay, he stated that, “the
correct approach” to EOT was a prospective assessment of the critical path. Again,
we don’t know why he had changed his mind since his earlier decision.
Thomas Barnes (2022)

In Thomas Barnes & Sons PLC (in administration) v Blackburn with Darwen Borough
Council (2022)58, Justice Davies said, “It must be borne in mind that the common
objective…is to enable the assessment of the impact of any delay to practical
completion caused by particular items on the critical path to completion”.
She proceeded throughout the judgement by reference to the critical path. However,
the judge’s interpretation of the critical path, appears to be that an activity is on the
critical path if it is a predecessor to a later activity on the critical path, irrespective of
whether it has float.
In this case, the commencement of the “SBS finishes” were dependent dually upon
completion of the roof coverings by the Contractor and by the concrete topping by
the Contractor. However the concrete topping could not be completed until repairs
had been undertaken in defects to the structural steelwork, for which the Employer
was responsible. On this basis alone, Justice Davies appears to have concluded that
where both the roof coverings activity and the structural defect issue were ongoing,
they were concurrent causes of critical delay. This was essentially the Employer’s
argument, i.e. that until the roof coverings were complete they were on the critical
path. Upon completion, only the steel work path remained critical.
This notwithstanding the Contractor’s expert pointing out that ”… even if the roof is
done, you can't start any finishes because of the SFS, therefore the roof coverings
were not critical”. Justice described this as being, “a very neat explanation of his
approach, which was to work backwards from the as-built critical path and, because
the hub SFS were finished after the roof coverings, to treat the hub SFS as on the
critical path and to discount the roof coverings as even being on the critical path from
the outset.”
But this is by definition how critical path theory works. It considers the longest path to
completion of the Works at any point in time. It is suggested that the judge does not
in practice take a critical path approach at all.
Conclusion
It can be seen that this critical path approach, which appears to be a logical
absurdity and seemingly not fit for the purpose of assessing extension of time
entitlement, has crept into English law gradually from 1999 – 2022, and really only
been consistently adopted since 2011, notwithstanding the adoption of the practice
in the industry prior to that based perhaps on the SCL Protocol.
The SCL might argue that the Protocol reflected practice at that time and whilst it’s
possible that such an argument could be made, this author’s personal recollection
(as a QS at the time) is that impacted-as-planned was still commonly used in 2002
and that at that point the concept of a “delay analyst” was unknown, with programme
software still very much in the realm of the construction planner.
57
[2018] EWHC 490 (TCC)
58
[2022] EWHC 2598 (TCC)
26
PART 4: PARALLEL DELAYS AND THEORETICAL DELAYS

(THE CONCURRENCY CASES)
Malmaison (1999)
In the case of Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd
(1999), the dispute which Justice Dyson was considering related to the scope of an
arbitrator’s jurisdiction in relation to reviewing an Architect’s assessment of
entitlement to extension of time under the JCT80 Standard Building Contract (See
Appendix B), and more specifically as follows:
“the respondent denies that the Works were delayed by the matters alleged
by the claimant, and asserts that…the claimant's assessment of delay was
based on a revised programme which ignored the true state of the Works at
the date of issue…” and the fact that “the claimant's delay analysis does not
take into account any culpable delay on its part or actual progress at the time
of the events relied upon”.
…The claimant submits that these are not matters that can be raised by way
of defence to its claim for extensions of time…and are irrelevant and outside
the scope of the Arbitrator's jurisdiction. The respondent argues that these are
matters that can be raised as a true defence to the claims for extensions of
time that are before the Arbitrator, so that they fall come within the scope of
the arbitration.”
So the Contractor’s argument – which Justice Dyson rejects – is that the Contractor’s
actual progress does not need to be considered, and entitlement can be assessed
merely on an as planned impacted basis.
Justice Dyson called Justice Colman’s interpretation of clause 25 “valuable” and
summarised the result as being that, “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.”. It is
submitted that this is an excellent summary of Justice Colman’s conclusion. Justice
Dyson also explained that the parties agreed with this approach.
The words of Justice Dyson which have caused conjecture, are as follows: “The
positive defence (open to the Employer) is that the true cause of the delay was
other matters, which were not Relevant Events, and for which the contractor was
responsible”
Justice Dyson is saying that the Architect can consider the effects on progress of
events which are not Relevant Events, when forming opinion as to whether a
Relevant Event did or did not cause delay.
He gives an example in which a period of suspension is caused jointly by a
Contractor resourcing issue and a weather event for which the Employer has
accepted the risk, and says that in that case there should be entitlement to extension
of time on the basis of concurrent delay, but “it is incorrect to say that, as a matter
of construction of clause 25, when deciding whether a Relevant Event is likely to
cause or has caused delay, the Architect may not consider the impact on
27
progress and completion of other events”. Justice Dyson says, “it’s impossible to
lay down hard and fast rules”.
An interpretation that has been given to the judgement is that Justice Dyson was
suggesting that the contract requires the Architect to look at periods of delay, and
allocate them between the parties.
It could be noted that what the JCT contract requires,on a contemporary basis, is for
the Architect – where he/she has been notified of delays or likely delays in the
progress of the Works - to decide whether a Relevant Event has delayed the project,
and if so, make a fair and reasonable estimate. It doesn’t seem clear that there is an
additional step of identifying a period of delay and attributing the causes.
But in any case, this is arguably giving too prescriptive an interpretation to the point
which the judge is making, in the context of his decision which is in regards to the
fact that “the claimant's delay analysis does not take into account any culpable delay
on its part or actual progress at the time of the events relied upon”.
A reasonable alternative interpretation of Justice Dyson’s comments (which it is
submitted is also the meaning which Justice Seymour in the next case intended to
attribute to them), is that they merely re-iterate that the Contractor is not entitled to
an extension of time for delays caused by matters which are not Relevant Events,
and clarifies per Balfour Beatty v Chestermount that the Relevant Event needs to
delay the actual progress of the Works, not theoretically delay the planned progress.
Justice Dyson said, “it is a question of fact in any case whether a relevant event has
caused or is likely to cause delay to the works beyond the completion date in the
sense described by Colman J in the Balfour Beatty case”.
The baton was picked up by Justice Seymour in the case of Royal Brompton
Hospital NHS Trust v Frederick A Hammond & Others (2000) which involved a
professional negligence claim in which it was asserted that the Architect had been
negligent in awarding too much extension of time. Justice Seymour held there had
been no negligence.
Justice Seymour cited a passage from Justice Dyson’s judgement, in which Justice
Dyson stated that “it is agreed” (by the parties and seemingly by the Judge),
“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 the 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.”
Justice Seymour then said in response to an assertion made by the defendant
Architect to situations in which “relevant and non-relevant events operate
concurrently”: (emphasis added)
28
“…it is, I think, necessary to be clear what one means by events operating
concurrently.”
(it relates to) “a situation in which, 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…In such circumstances
there is real concurrency of causes of delay”.
“It does not mean, in my judgement, work already being delayed, let it be
supposed, because the contractor has had difficultly 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…The
Relevant Event simply has no effect on the completion date.”
Some commentators have attributed to Justice Seymour’s words a meaning that

there is no EOT entitlement when a Relevant Event arises after an ongoing
Contractor delay event has arisen. This is sometimes referred to as the ‘first in time’
approach.
And this has given further license to the intensive involvement of delay analysts
looking for Contractor delay ‘events’. It's particularly problematic, as most delay
events don’t cause a total suspension, but a drop in productivity, so this approach
can be interpreted as a charter to search for drops in Contractor productivity, which
makes the delay exercise vastly more complicated, than a mere assessment in
isolation of the effects beyond the Completion Date, of Relevant Events.
It seems fair to say though that notwithstanding these complications, the delay
industry (and the Society of Construction Law) has pushed this interpretation hard59.
This report suggest though, that that attributed meaning is not what Justice Seymour
intended. The following grounds can be provided for this conclusion:
1. When referring to Justice Dyson’s decision, Justice Seymour makes no

reference to the true cause passage, but does expressly construe Justice
Dyson’s findings in accordance with Justice Colman’s (as Justice Dyson himself
did).
2. The distinction which Justice Seymour makes is that there is not concurrency
(i.e. there is no entitlement) in a situation where “by reason of the existing delay”
the Relevant Event “made no difference”. So assuming the first in time
interpretation, if let’s say the site was closed for a week due to exceptional
weather conditions, then there would be no extension of time if that week fell in
the middle of a 2 week absence of the Contractor due to not having labour. This
is on the basis that in this case, the weather “made no difference”. But on the
same basis the weather also “made no difference” in the situation for which
Justice Seymour states that an extension of time should be given, i.e. . “either of
which had it happened on its own would have caused delay”. So it doesn’t seem
logically sound that this was the point which Justice Seymour was intending.
59
Lord Osborne reached the same conclusion as to Justice Seymour’s intention in a Scottish case in 2010,
however he rejected the approach saying that has no logic and is not in accordance with the JCT contract.
29
3. Justice Seymour states that there IS entitlement in connection with competing

events, “either of which had it happened on its own would have caused delay”.
But this has the opposite effect of a first in time (or for that matter critical path)
approach (SCL Protocol 2nd edition expressly explains that there should be no
entitlement where the later arising event would on its own otherwise have
caused delay, as its justification for a first in time approach to concurrency).
4. Justice Seymour distinguishes the situation in which there should be EOT
entitlement from a situation where Works “are proceeding in a regular fashion
and on programme when two things happen”. But whether the works are “on
programme” or not when a delay occurs, is irrelevant when considering whether
an extension of time should be provided in regards to any new delay. It is
universally accepted that a Contractor may be entitled to extensions of time
whether it is running on programme or whether it is behind programme when
Relevant Events occur (see Justice Colman). Again this suggests that Justice
Seymour’s point has been misunderstood (further analysis after point 5 below).
5. The first in time interpretation would also not be supported by other parts of the
judgement which is also usually completely ignored by commentators:
a. Justice Seymour explained , “I was urged to conclude that WGI must have
been negligent in awarding extensions of time totalling 35 weeks if there
were only 13 weeks time lost. The validity of the points depends, in my
judgement, upon the assumption that it was either not open to (the
Contractor) to seek to improve upon the Target Programme, or that, as a
practical matter, it was impossible…to do so….I do not consider that
assumption to be a proper one to make”. The consequence of this is that
Justice Seymour acknowledged that a Contractor was entitled to an
extension of time, even if it accelerated and thereby wiped out the delay
theoretically caused by the Employer. If the Contractor was entitled to
accelerate through Employer delay (and still be entitled to an extension of
time), it seems that it must be entitled to accelerate to make up its own
delay. And in that case, the (Contractor) delay can not really be said to
have occurred at all until the completion date has passed, and when its
opportunity not to complete later than contractually required has expired,
so how can a period of Contractor delay be compared to the timing of a
period of Employer delay?
b. Furthermore, Justice Seymour added ,“an extension of time could be
justified if a Contractor was prevented from recovering lost time by the
occurrence of a Relevant Event”. It seems clear from this statement, that
the Judge was of the view that the Relevant Event can prevent the
Contractor from accelerating through its own ‘delay’.
It’s noted that Justice Seymour considered the appropriate consideration was
whether at the time of the Employer delay event it was “impossible” for the
Contractor to have made up lost time. On this basis, culpable delay would rarely be
included in a programme before it’s impacted for an Employer event at all.
On the basis of each of the points above, but in particular point 4, it is submitted that
Justice Seymour is referring to a situation not where an Employer event falls within a
period of culpable delay, but to a situation in which the Employer is, for example, late
in supplying the door frame, but the Contractor is even later and has not yet built the
blockwork, and he is concluding that the calculation of the delay caused by the late
door frames should only start at the point where the progress of the blockwork was
30
sufficient to enable progress on the doors, because until then the delay is only
theoretical (against the planned programme) delay and not actual. The “on
programme” reference in particular makes sense in this context.
It seems perfectly understandable to conclude that such a situation is not a

concurrent delay for the one event is not an (actual) delay at all because the activity
is not yet in a status where it can be commenced. On this basis Justice Seymour is
saying no more than Justice Colman says in Chestermount, and arguably than
Justice Dyson says in Malmaison, i.e.:
• where for example the blockwork is on pace, but the Employer supplied door
frames haven’t turned up AND (let’s say) the Contractor’s only carpenter has
broken his arm, then there is concurrent delay.
• If the Employer supplied door frames haven’t turned up, but the Contractor
hasn’t built the blockwork yet, then it isn’t concurrent delay, the Employer
issue isn’t delay at all.
But in the first situation where the blockwork is on pace, but then the door frames
can’t go in for 2 competing reasons, it doesn’t matter a jot whether the carpenter
broke his arm at the same moment that the door frame supplier postponed its
delivery, or before it or after it. The point is, that when the activity was actually ready
to be undertaken, neither the Employer nor the Contractor were ready. The works
are proceeding on programme and in a regular fashion when suddenly they can’t
continue, due to an Employer risk event and a Contractor risk event. It is suggested,
that it can be concluded with high confidence, that Justice Seymour is not intending
the implications which have been attributed by some commentators.
The Society of Construction Law consultation document (2001)
In late 2001, the Society of Construction Law sent out a consultation document in the
form of a draft Protocol on delay and disruption, which by a common interpretation
takes a first in time approach to concurrent delay, whereby if there are competing
causes of delays operating in parallel, the event which started first will be taken as
the cause of the delay and the later arising events disregarded. The SCL document
is addressed further in Part 7 of this Report.
Motherwell Bridge (2002)
The next judicial development was the case of Motherwell Bridge Construction v
Micafil Vakuumtechnik60 (January 2002) which concerned the interpretation of FIDIC
contracts. In relation to the timing of Employer delays and other events, Justice
Toulmin held, “other delays caused by (the Contractor) are not relevant…these are
not relevant events, since this court is concerned with considering extensions of time
within which the contract must be completed.…an extension of time for completion of
the works may be granted in respect of a relevant event occurring during the period
of culpable delay…The completion date is…to be adjusted by 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.”
60
(2002) CILL 191
31
This seems to be essentially the same finding as Justice Colman. There’s no

mention of Malmaison or Royal Brompton providing for anything different.
The judge also held that the Contractor was entitled to an extension of time
notwithstanding that no actual delay to completion arose from this matter due to
acceleration by the Contractor. This is the same as of Justice Seymour’s findings in
Royal Brompton (point 5a in the analysis of that case above).
This is another of the cases which provides a simple solution and which the
delay and disputes industries appears to have forgotten. This clear solution, was
just what the industry needed at the time, in order to calm down the confusion to long
established principles created by the Malmaison case.
London Borough of Lambeth (2002)
The next case, the judgement given in April, is Balfour Beatty Construction Ltd v The
Mayor and Burgess of the London Borough of Lambeth (2002)61, in which the judge
was Justice Lloyd, former President of the Society of Construction Law. On the
concurrency point he stated, “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.”
He gave no reasoning for this point, and made no reference to authority, legal or
otherwise. There has never (yet at least) been another judicial authority for
disregarding all “parallel” Employer delays (including situations which the Society of
Construction Law have since described as ‘true concurrency’), and it is noted that
this was a throwaway comment, made in the course of something of a tirade aimed
towards the adjudicator and the adjudication process in general.
Society of Construction Law Protocol (2002)
In October 2002, the Society of Construction Law published its Protocol on Delay
and Disruption. The SCL document is addressed in Part 7 of this paper.
‘Hammond 2002’
Also in October 2002, Justice Lloyd presided over another of the cases between
Royal Brompton and Hammond and others62 (to distinguish it from Royal Brompton,
it is referred to in this report as “Hammond 2002”). It is not widely reported, but
contrary to his position in the Lambeth case 6 months earlier in which he said that
the Contractor takes the risk of parallel delays, Justice Lloyd stated that, “the
absence of (Contractor) resources prior to 14 August (the date on which it received
the drawings) is in my judgment of no consequence” (para 124). This seems to
suggest that in this case Justice Lloyd considered that Contractor delay did not affect
entitlement to extension of time. This seems on the face of it to take the simple
approach of the 20th century judgements.
61
[2002] EWHC 597 (TCC)
62
[2002] EWHC 2037 (TCC)
32
JCT 05 Building Contract (2005)
It is noted that the 2005 version of the Standard Building Contract included 2
changes to the delay mechanisms63 from the 1980/1998 versions.
• In the clause titled, “Notice by Contractor of delay to progress” (now clause

2.27) 2.27.2 now required Contractor to notify particulars and expected effects
of all matters notified pursuant to clause 2.27.1. In previous versions of the
contract, particulars only had to be given of Relevant Events. In this version
of the contract and subsequent versions of the contract, the contract could
reasonably be interpreted as recognising the concept of Contractor delay
events.
• In the clause titled “Fixing Completion Date” (now clause 2.28), the words,
“save where these Conditions expressly provide otherwise”., are inserted
immediately before the words, “The Architect/Contract Administrator
shall…give an extension of time by fixing such later date as the Completion
Date as he then estimates to be fair and reasonable”,
Both of these new provisions have remained in subsequent versions of the contract.
It is submitted that the intention of the change to 2.28, was to oust approaches of the
kind which had been precipitated by the Malmaison case, the Lambeth case, and
the Society of Construction Law Protocol. It is submitted that the (primary) intention
of the change in notification requirements, is with regards to claims for loss and/or
expense.
The change in 2.28, however, went completely ignored, and much like the chain of
cases which provide that the Contractor is entitled to a reasonable period based on
an aggregate of the Employer risk events, is not generally cited in the judgements
which discuss the JCT contract.
De Beers v Atos Origin (2010)
The pre-Malmaison position was re-iterated in De Beers UK Ltd (formerly Diamond

Trading Co Ltd) v Atos Origin IT Services UK Ltd (2010)64. The judge in this case
was Justice Edwards-Stuart, who 3 years later would take charge of the Technology
and Construction Court. The case related directly to the i.t. services industry but in
the extract below the judge commented on his understanding of how the causation
issue was addressed in relation to extension of time in the construction industry. In
his case he determined that,” The general rule in construction and engineering
cases is that…where delay is caused by the employer 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.”. This has become another of the ‘lost
63
Key provisions of the 1980 clause are included in Appendix D
64
[2010] EWHC 3276 (TCC)
33
judgements’, and in fact in a 2019 Society of Construction Law paper, Lord Justice
Coulson informed that the decision was based on the express terms of the particular
contract in that computing industry dispute!
City Inn (2010)
In the Scottish case of City Inn v Shepherd (2010)65, heard in the Inner House (the
approximate equivalent of the old Privy Council in Scottish law) and concerning a
JCT contract, Lord Carloway gave a dissenting judgement, restating the traditional
approach (or by an alternative construction, taking a ‘wider than Chestermount’ as-
planned-impacted approach):
“…the delay caused by the contractor…is irrelevant so far as the contractual

exercise in concerned. That exercise does not involve an analysis of
competing causes. It involves a prediction of the Completion Date taking into
account that originally stated in the contract and adding the extra time which a
Relevant Event would have instructed, all other things being equal”
“This provision is designed to allow the contractor sufficient time to complete
the Works, having regard to matters which are not his fault (i.e. Relevant
Events)….It proceeds, to a large extent, upon a hypothetical assumption that
the contract has proceeded, and will proceed, without contractor default. It
involves an assessment, on that assumption, of the delay which would have
been caused to the Completion Date purely as a result of the Relevant Event.”
“In the oft quoted context of bad weather…It is of no moment that there was a
contractor default before, during or after the weather conditions.”
“If a Relevant Event occurs (no matter when), the fact that the Works
would have been delayed, in any event, because of a contractor default
remains irrelevant.”
However see Part 4 below for the majority judgement, taking a dominant cause
approach.
Adyard (2011)
In of Adyard Abu Dhabi v SD Marine Services (2011), Justice Hamblen made

references to Mr Marrin’ QCs 2002 paper (see Part 5 below), and made the following
comments in relation to what he described as concurrent delay:
• (para 277) “A useful working definition of concurrent delay in this context is ‘a

period of project overrun which is caused by two or more effective causes of
delay which are of approximately equal causative potency’ "
• (para 279) (After citing Justice Seymour’s famous words), “This makes it clear
that there is only concurrency if both events in fact cause delay to the
progress of the works and the delaying effect of the two events is felt at the
same time.”
65
[2010] ScotCS CSIH 68
34
• (para 286) “the English law authorities in relation to extensions of time under
the JCT form and similar contracts are clear that it must be established that
the relevant event is at least a concurrent cause of actual delay to the
progress of the works.”
As discussed in Part 7 below, these observations have been cited by commentators

as authority for a first in time approach to concurrency.
What did Justice Hamblen mean here?
Well, in the passage immediately before the judge reviews the concurrency
authorities, he says that, by Adyard’s argument (para 264), “there is no need to
prove the event or act causes any actual delay to the progress of the works”. This
comment is made in the context of Adyard’s argument that extension of time should
be given (para 260-262), “regardless of whether the variation would have any impact
on the actual progress of the works”.
By Adyard’s argument, he says, “One looks only at the event/act in question and
how it relates to the contractual completion date….So, if the project was already in
six months irretrievable delay it would make no difference to the causation analysis.
Adyard would still get its extension of time…..(Counsel for the owner) gave a helpful
example of the extreme consequences in practical terms of this approach:…”
The “helpful example” was given in the following terms: "Assuming (as is in fact
appropriate in the present case) that the contractor is many months in delay by
reason of its own default. The employer decides a week before the (original
unextended) contract completion date that he wishes a wall to be painted blue
instead of the contractually specified red. At the time of the instruction, because of
the contractor's delays, the wall is not even built yet. The paint will take 5 weeks to
procure, but will still arrive before the completion of the wall and the date upon which
the contractor would require the paint in line with his delayed progress.”
It’s specifically in the above context that the judge reviews the concurrency
authorities.
Whilst its possible that Justice Hamblen had wider considerations that were not
expressly set out, the context indicates that the judge had in mind the meaning which
this report attributes further above to Justice Seymour’s words, namely the narrower
point that the Employer event has to be a factor in works which are ongoing at the
time of the Employer event, otherwise the delay is only theoretical.
The judge’s reference to existing delay is also worth noting. He lampoons Adyard’s
argument on the basis that it would mean that it could still get an extension of time
even if it was 6 months behind programme when the Employer event occurred. But
(certainly in the construction industry, which the judge draws equivalences with), a
Contractor can become entitled to an extension of time, irrespective of whether it is 6
months in delay or not. If the Employer delay causes further delay then to that which
already existed, then there is an entitlement to extension of time, irrespective of
whether the existing culpable delay is irretrievable.
35
It suggested that the judge must be talking about a situation where the Employer’s
‘delays’ against planned intent, do not relate to activities which are actually in
progress, the same as Justice Seymour appears to have considered, rather than a
situation where there are two ongoing independently caused events jointly affecting
an activity or path of works.
See Part 6 of the report for further discussion of this case, where Justice Hamblen
goes on to relate the concurrency authorities to the critical path approach.
Walter Lilly (2012)
Walter Lilly v Giles Mackay (2012) was presided over by Justice Akenhead, the
Judge in charge of the Technology and Construction Court, prior to Justice Edwards-
Stuart’s appointment.
This was a case from the construction industry, which involved not only a building
project, but a JCT contract. Justice Akenhead refers to Justice Hamblen’s judgement
in Adyard (see Part 6 below) and describes it as a “shipbuilding dispute”, before
immediately saying “in any case” and then giving an alternative view to Justice
Hamblen on the JCT contract.
Justice Akenhead says, “I am clearly of the view that, where there is an extension of
time clause such as that agreed upon in this case and where delay is caused by
two or more effective causes, one of which entitles the contractor to an extension
of time as being a Relevant Event, the contractor is entitled to a full extension of
time…there is a straight contractual interpretation of Clause 25 which points very
strongly in favour of the view that, provided that the Relevant Events can be
shown to have delayed the Works, the contractor is entitled to an extension of
time for the whole period of delay caused by the Relevant Events in question”.
It's not clear (because ‘effective cause’ is not defined), but this seems to support the
Balfour Beatty v Chestermount approach.
North Midland Building (2018)
The leading judgment in the Court of Appeal was given by the Society of
Construction Law’s current President Lord Justice Coulson. The case is called North
Midland Construction Ltd v Cyden Homes Ltd (2018).
‘The Wrong Path’ identifies 27 issues with (mostly criticisms of) this judgement.
The judgement allows an express concurrent delay clause and formally adopts a part
of the description given by John Marrin QC’s 2002 Society of Construction Law
paper (see Part 5 below) as a legal definition of concurrent delay, “a period of project
overrun which is caused by two or more effective causes of delay which are of
approximately equal causative potency”.
The judge does not appear to countenance entitlement in respect of parallel delays
which do not fulfill the definition of concurrent delay which he provides, but this did
not need to be decided and it is suggested no firm conclusion can be drawn. The
issue of which party will be responsible for true concurrency absent an express
clause is also left undecided.
36
In 2019, the Society of Construction Law published a paper by their President

Lord Justice Coulson on the topic of concurrent delay, titled, “Prevention or cure ?
Delay claims and the rise of concurrency”, Lord Justice Coulson refers to his 2018
judgement and states, “it seems likely that the popularity of concurrency clauses will
continue to grow”, before concluding that he expect concurrency to, “continue to
supply work to lawyers and arbitrators for years to come”.
Thomas Barnes (2022)
In Thomas Barnes & Sons PLC (in administration) v Blackburn with Darwen Borough
Council (2022), Justice Davies considered two different periods of delays during the
project, both times in conjunction with the concurrency authorities.
The issue which took up a larger part of the judgement, involved a claim by the
Contractor for a period of 133 days extension of time, in respect of steelwork
deflections for which the Employer was responsible, and upon which the
commencement of concrete topping to floor slabs was dependent, and upon which
the commencement of the “SBS finishes” was subsequently dependent.
The Employer’s expert argued that this should be reduced to 39 days, on account of
separate delays caused by the Contractor to some roof coverings, which it
contended the commencement of the SBS finishes was also dependent upon.
The Employer argued that for part of the period of delay contended by the
Contractor, it was actually the roof coverings and not the steelwork deflections which
were on the critical path. It was also noted that there was, “a substantial period of
delay within this period (the period relating to the steelwork deflections) which was
caused by the roof coverings issue”
Justice Davies held that the two paths were jointly critical throughout the period in
which they were impacted by the respective delays (this appears to be a difficult
finding to establish on the facts – see Part 3 above).
She awarded a full extension of time (save for a reduction of 14 days due to non-
related issues), and did not discount entirely the smaller period of delay caused by
the Contractor’s roof coverings which fell “within” the Employer’s steelwork delay, but
rather regarded it as an “effective cause” of delay, and thereby “concurrent over the
period of delay caused by the roof coverings” (which appears to give a wide
interpretation of the definition of that principle which Lord Justice Coulson gave in
Cyden Homes v North Midland Construction in 2018).
Relying on Keating 11th Edition, Justice Davies held that the law on concurrency,
which she described as being “settled”, provided that there should be a full extension
of time for the period of the Employer delay.
Justice Davies then went on (paras 150-153) to consider the second issue, which
was a later delay to a single (critical) path, involving setting out of finishes. After the
finishes were completed, an instruction was issued to remove and replace the work
due to a setting out issue.
37
The Contractor argued that setting out was the Employer’s responsibility. The facts
are a little unclear, but it seems to have argued that it was entitled to an extension of
time for the whole period effectively from commencement of the finishes the first
time, until their completion the second time (less a 5 days period for their reasonable
installation) (75 days EOT).
The Employer argued that this period should be reduced by some 51 days to 24
days, on account of exceptionally slow progress by the Contractor in undertaking the
work, and that if it had completed the work in an orderly fashion, then the instruction
to re-do the work would have been issued earlier.
The judge actually found that the setting out was not a Relevant Event. However she
said that if she had found otherwise, then even though she accepted that the works
would have been completed earlier if the Contractor had performed the works at a
normal pace, then the Contractor would still be entitled to an EOT for the full period
of delay, on the basis that it constituted “concurrent delay”.
It is suggested that the judge has made a mistake here. This is not concurrent delay
in any sense (it's not even a dominant cause of a period of delay), it is two different
sequential periods of delay caused by two different events. What’s of note though is
that it seems clear that if there had been parallel causes of the same period of delay,
then the judge would have provided relief to the Contractor, notwithstanding that the
Employer delay was subsumed by the Contractor’s larger delay.
What seems clear (from the basis of the Judge’s findings in respect of both of the
periods of delay reviewed), is that in terms of concurrency, the judge in this case is
reverting to the position which this report describes Royal Brompton as taking, or
even the pre-Chestermount position (notwithstanding the SCL approach: see Part 7).
Comment
In fact, most of the judgements reviewed in this section can be aligned pretty closely
with one another.
Although we return to another aspect of the Adyard case in Part 6, and the Society of
Construction Law position in Part 7, the outliers to date seem to be the Lambeth
case, and arguably North Midland.
It will be interesting to see who makes the next move in light of the apparent
simplification of matters in Thomas Barnes.
Further analysis is included in Part 5 of The Wrong Path.
38
PART 5: THE DOMINANT CAUSE AND/OR APPORTIONMENT

ARGUMENT (AN ALTERNATIVE APPROACH TO
CONCURRENCY)
Society of Construction Law (Hong Kong) Concurrent Delay paper (2002)
In February 2002, the Society of Construction Law (Hong Kong), published a paper
by John Marrin QC on the topic of “Concurrent delay”. The paper appears to be
misconceived and misleading. One point of view would suggest it is mere mischief
making. Nevertheless, it has served as a basis for some legal commentaries and
even of a finding of the Court of Appeal.
The paper’s arguments appear to be predicated on the notion that if a Contractor

gets an extension of time, then it is automatically entitled to prolongation costs.
Pages of the paper are devoted to solving this “obverse problem”. However as
construction professionals generally know, extension of time and prolongation costs
are ordinarily dealt with separately under separate clauses so this is not any kind of
problem, obverse or otherwise.
Mr Marrin says, “on behalf of Contractors, it is occasionally suggested that the
correct approach…is to apply the ‘but for’ test of causation…There do not appear to
be any reported cases where it is suggested that the ‘but for’ test could be applied to
the determination of contractual claims.” He then cites a case in which a but for
argument was rejected. But the case cited by Mr Marrin is from the accountancy
industry which appears from his description of the case to have nothing at all to do
with extension of time or even delay. He also ignores the fact that there are cases in
which something similar to the ‘but for’ test has been applied in everything but name,
including construction cases dealing with extensions of time (including one such
decision two months before the paper was delivered), and that the history of
extensions of time since at least the mid 19th century had developed on this basis.
The paper refers to competing causes of “approximately equal causative potency” as

being “effective causes”, but in other cases, “the minor cause is treated as if it were
not causative at all”. This is the dominant cause approach.
Mr Marrin states, “Since at least the 1980s, it has commonly been suggested that the
correct approach to the matter of causation in determining Contractors’ claims is to
apply what is called the ‘dominant cause’ approach.”. Mr Marrin cites Keating 5th
edition (published not in the 1980s but in 1991), but neglects to mention that the
extract which he cites is from a section of chapter 8 of the book which deals with
contractor cost claims66, and that there is not a single mention of extensions of time
or liquidated damages in the section referenced. The example cited by Mr Marrin is
stated in the book as relating to a situation, “where a contractor claims payment
under the contract, e.g. for delay” (emphasis added).
Mr Marrin states, “it is not to be thought that the Malmaison approach is new. Indeed,
in the 1970s, few would have contended for any other approach. It was, for example,
the approach adopted by the successful contractors in the Fairweather case.”.
66
Chapter 9 (not referred to by Mr Marrin) is titled “The Time for completion and liquidated damages”.
39
Again Mr Marrin appears to be mistaken. Mr Marrin is presenting a dominant cause

approach (Fairweather is a dominant cause case). Whilst “true cause” as referenced
by Justice Dyson in Malmaison could be construed as being in line with a dominant
cause approach, the conclusion that Justice Dyson was recommending a dominant
cause approach appears to be precipitous. Moreover however, the Fairweather
case67 was about which Relevant Event applied, and whether that affected
entitlement to prolongation costs. It was not about entitlement to extension of time,
which had already been granted. The contractor in Fairweather did not need a
“Malmaison” approach to succeed in its extension of time claim, because the
extension of time claim was not in dispute.
To confuse things further – having appeared to describe the Malmaison decision in
terms of a dominant cause approach – at the end of the paper Mr Marrin says, “of
the various approaches discussed above, the main contenders, at least in relation to
the chosen example, are the dominant cause approach…and the Malmaison
approach. It is thought that the latter is to be preferred”.
It might very well not be the case, but this author wonders whether the paper may
have been rushed out in response to the calming of the waters provided by the
Motherwell Bridge judgement in January of the same year.
Keating 8th edition (2006)
Keating on Construction Contracts, 8th edition, published in 2006 stated,
“It now appears to be accepted that a Contractor is entitled to extension of

time notwithstanding the matter relied upon by the Contractor not being the
dominant cause of delay, provided only that it has equal ‘causative potency’
with all other matters causing delay”
“The rationale for such an approach is that where the parties have expressly
provided in their contract for an extension of time caused by certain events,
the parties must be taken to have contemplated that there could be more than
one effective cause of delay (one of which would not qualify for an extension
of time) but nevertheless by their express words agreed that in such
circumstances the Contractor is entitled to an extension of time for an
effective cause of delay falling within the relevant contractual position”
A footnote is provided referring to Justice Dyson’s decision in Henry Boot

Construction v Malmaison Hotel Manchester (1999).
The implication appears to be that where an Employer event is of less than “equal
causative potency” there will be no entitlement. It seems difficult to establish this
conclusion from the authorities.
The following points are noted:
• It doesn’t appear to have been suggested in English legal authorities that the
Contractor would not or may not be entitled to an extension of time if the
matter relied upon by the Contractor was not the dominant cause of delay.
67
H.Fairweather&Co v London Borough of Wandsworth (1987)
40
• None of the judgments make reference to a cause having to be of “equal

causative potency’”. Equal causative potency wasn’t referred to in the
decision of Henry Boot Construction v Malmaison Hotel Manchester as
contended. This is a reference in fact from Mr Marrin’s 2002 Society of
Construction Law paper.
• Seemingly no judgement up to the date of this publication, and not
Malmaison, referred to “effective cause”.
• The “rationale” given is not referenced in the judgments, including Malmaison.
Steria v Sigma (2007)
Steria Ltd v Sigma Wireless Communications Ltd (2007)68, (which relied on Keating
8th edition) was an information technology case. It’s clear from a review of the facts
of this case that if Sigma did cause any delay, then it was sequential delay.
The judge has either found that the sub-Contractor is entitled to a full extension of
time notwithstanding that the Employer delay did not account for the full period of
delay OR that the Sub-contractor is entitled to a full extension of time because it did
not cause any delay at all. Either way, this appears to be nothing to do with the
assessment of incremental periods of delay, as in a construction project.
City Inn v Shepherd
In the Scottish case of City Inn v Shepherd (2010), heard in the Inner House (the
approximate equivalent of the old Privy Council in Scottish law), Lord Carloway gave
a dissenting judgement, restating the traditional approach (or by an alternative
construction, taking an as planned impacted approach), see Part 4 above. The
majority judgement though was given by Lord Osborne who held that,
“if a dominant cause can be identified as the cause of some particular delay in
the completion of the works, effect will be given to that by leaving out of
account any cause or causes which are not material. Depending on whether
or not the dominant cause is a relevant event, the claim for extension of time
will or will not succeed.”…“where a situation exists in which two causes are
operative, one being a relevant event and the other some event for which the
contractor is to be taken to be responsible, and neither of which could be
described as the dominant cause…it will be open to the decision-maker,
whether the architect, or other tribunal, approaching the issue in a fair and
reasonable way, to apportion the delay in the completion of the works
occasioned thereby as between the relevant event and the other event”. It's
noted that a full extension of time was awarded..
It’s worth bearing in mind a point made by the Employer’s delay expert in the Royal
Brompton case, where he said, “Distinguishing between 2 separate concurrent
causes of delay…and 2 interacting causes…can be difficult in practice”.
We aren’t privy in that judgement to the definitions which the expert had given to
these terms, but perhaps the expert was referring to a situation where if assessing
delay using what would now be seen an effect and cause method (rather than a
68
[2008] BLR 79 TCC
41
cause and effect method), the smaller cause of a period of delay could be
disregarded, and the whole of the period of delay where there were interacting
causes would be allocated to the dominant cause. Perhaps it’s something like this
that Lord Osborne had in mind in City Inn.
The dominant cause or apportionment approach however hasn’t – to the best of this
author’s knowledge - been followed since (at least in English law), so it is not
considered further in this paper.
Although it is noted that it is understood that many modern forensic delay analyses
are effectively undertaken on these bases, by identifying periods of delay and
allocating them between the parties on an effect and cause basis (see Part 9 below).
42
PART 6: CONFLATION OF CONCURRENCY AUTHORITIES

WITH THE CRITICAL PATH ANALYSIS APPROACH
Adyard (2011)
The case of Adyard Abu Dhabi v SD Marine Services (2011)69 involved a medium
sized Abu Dhabi based shipyard, and a U.K. based supplier of the British Royal
Navy.
The facts are essentially that Adyard was building, amongst other things, 2
ships/hulls for SDMS. If they were not ready for sea trials “by the contractually
agreed dates” then SDMS could rescind the contract and require
reimbursement of all sums paid to Adyard.
It’s worth noting that every bit of extension of time to a Contractor on a delayed
construction project is valuable, because LDs are applied in increments. In this
shipping case it was all or nothing. If Adyard could not get an extension of the sea
trial date all the way up to actual completion, then SDMS could rescind.
For whatever reason, there seem to be several peculiarities about this judgement.
A first peculiarity is the judge’s apparent explanation of how extension of time

clauses work. He said, (emphasis added) (para 259): “ If, for example, a two day
variation was instructed the day before the sea trials date, and was a variation of a
type which would need to be completed before sea trials, then, if there was an
extension of time clause Adyard would be entitled to a one day extension of time”. It
seems quite clear that the extension of time entitlement in this situation would
be 2 days, not 1 day.
A second peculiarity of the judgement is that it’s difficult to see that Adyard was
arguing on an extension of time basis at all. Justice Hamblen asserts that Adyard’s
contention was entitlement to extension of time of, “at least 7 days in respect of Hull
10 and one day in respect of Hull 11”. Yet the total delay to the project was more
than a year, so such extensions would have been useless to Adyard, as SDMS could
have rescinded even if the extension of time was awarded. It seems more likely that
Adyard was arguing solely on the basis of the prevention principle (in fact Justice
Hamblen stated that this was the position which it took during the trial), and Justice
Hamblen has gone out of his way to talk about concurrent delay in extension of time
claims on “JCT and similar” contracts.
This leads into more peculiarities. At paragraphs 285 and 286, the judge concluded
that if the contract works had not been “defined by reference to…programmes” then
he would have allowed an argument such as apparently put forward by Adyard, to
the effect that Employer delays don’t have to be on the critical path to the date of
completion. That’s not peculiar at all, and makes sense. But the judge then goes on
to refer to, “the JCT form and similar contracts…” (the implication being that such
contracts are those which are defined by programmes) - and continued with the
analysis on that basis, seemingly to the effect that the critical path does apply.
69
[2011] EWHC 848 (Comm)
43
The third peculiarity is that Adyard wasn’t on a JCT contract, it was on a bespoke
shipbuilding contract with a scope of works and a start and end date, so it must have
been quite bemused by the direction the judgement took at this point.
The fourth peculiarity is that (because of the preceding point), it’s not even apparent
that Justice Hamblen had read a JCT contract. In fact Justice Hamblen’s conclusion
that in JCT contracts the Works are defined by programmes, would suggest that he
had likely not read a JCT contract, notwithstanding that he was creating legal
precedents specifically in relation to that contract and “similar” contracts.
Having got the concurrency point out of the way about the wall not being ready to
receive the Employer’s later than planned paint delivery (see Part 4 above), Justice
Hamblen then appears to go on (still applying the concurrency authorities) to look at
critical path analysis. The application of concurrency authorities to a critical path
approach can be seen as a fifth peculiarity, however it is clear from the judgement
that this is what Justice Hamblen was doing.
This is suggested initially by Justice Hamblen’s conclusion that Adyard’s argument

does not succeed because, “I have already found, the project was already in
irretrievable critical delay well before June 2009”.
In fact, to digress briefly, that leads into a fifth peculiarity in that Justice Hamblen
appears to assume that the alleged variation took effect when SDMS confirmed what
it was that they wanted Adyard to provide (which was around 19 months into the
project, in June 2009) rather than from when Adyard had been waiting for the
information such that it could undertake or complete the design, since shortly after
the job commenced. But this point is not important for the current purposes.
As mentioned above, in para 279 (after citing Justice Seymour’s famous words),
Hamblen says, “This makes it clear that there is only concurrency if both events in
fact cause delay to the progress of the works and the delaying effect of the two
events is felt at the same time.”. Almost immediately before citing Justice Seymour,
(at para 272) he beings to refers to Justice Colman’s judgement saying that Justice
Colman, “then went on to make it clear that delay (to the completion date) must be
therefore assessed by reference to the progress of the works (to the then-projected
completion date)”.
This seems to be a sixth peculiarity of Justice Hamblen’s judgement because –

whilst this author stands to be corrected – it seems clear that this does not appear to
be what Justice Colman decided70.
Regardless, the reference to “the then-projected completion date” reinforced the

point that what Justice Hamblen was considering when he reviewed the concurrency
authorities, was the wider issue of criticality (which was an issue which the judges
who provided those concurrency authorities were not applying them to).
70
Justice Hamblen provides no direct citation in support of this point, but refers to some page numbers, and
no other judge had appeared to have given the same interpretation, which clearly appears to be at odds with
what Justice Colman said in regards to aggregate Employer delays.
44
Further, Justice Hamblen repeats that, “Adyard submitted that the essential point,
whether analysed as a matter of "concurrency" or "prevention", is that the effect of
the Buyer's risk event has to be measured against the contractual completion date”.
This strongly suggests an argument attributed to Adyard, that a critical path

approach is invalid.
Justice Hamblen confirms this in paragraph 258 where he states (emphasis added),
“Adyard's causation case, both in relation to the prevention principle and any claim
for an extension of time, was that causation is established by showing that the
duration of the relevant event or act of prevention extended over the original
contractual sea trials date.”
Hamblen says at para 285, “the English law authorities in relation to extensions of
time under the JCT form and similar contracts are clear that it must be established
that the relevant event is at least a concurrent cause of actual delay to the progress
of the works.” All of these statements suggest that Justice Hamblen is talking about a
critical path argument, and conflating it with concurrency authorities.
This appears to be confirmed again in paragraph 293 where he says that Adyard,
“agreed in cross examination that there was no actual delay, whether viewed
prospectively or retrospectively, caused by any of the design items.”, and again in
paragraph 292 where he says that Adyard’s argument was based on a section of the
SCL Protocol which states that the Employer event needs to cause delay to the
Completion Date.
See also the discussion in Part 7 below.
Justie Hamblen’s definition of concurrent delay is, it is submitted, intending to say

that an Employer delay event needs to be on the critical path (or perhaps at least on
a path which is jointly critical).
It is suggested that this contrasts with the early UK concurrency cases including
Malmaison and Royal Brompton in which appeared to consider situations where
competing events related to a single critical path or single activity (or the whole of the
works, including the then critical path/activity). This author suggests that this is the
traditional understanding in the industry of the issue of concurrent delay, and the
issue which the 1st edition of the Protocol contemplated.
More on this discussion in Part 5 of The Wrong Path.
As this paper is highly critical of the decision in this case, and as this paper also
points out the close linkage between the English judiciary and the Society of
Construction Law, it is fair to point out that Justice Hamblen at one point in the
judgement expressly criticises the Society of Construction Law Protocol.
Saga Cruises (2016)
Saga Cruises v Fincantieri (2016) was another ship building case heard in the
commercial court.
45
The agreed ‘Date for Completion’ (the “SCD”) was 2 March 2012. It was held that the
contractor (“the Yard”) actually achieved completion on 16 March 2012, 14 calendar
days late.
The Judge held that the Owner/Employer completed an item of its own works to the
ship (alternator bearings for Genset 3) on 7 March, and another item (lifeboats) on
14 March, i.e. 2 days before the Yard achieved Completion.
The judge applied “concurrent delay” principles to these findings, to hold that the
Yard was responsible for the period of delay from the SCD (2 March) to actual
completion on 16 March.
In doing so the judge agreed with the Owner’s argument which she sets out at para
293 to the effect that (emphasis added), “On concurrent delay they say that…the
Yard would not…(have been able to) deliver the Vessel before 13 / 14 March 2012
(i.e. when the Owner’s activities were completed), this was not a critical delay
because the Yard had in any event not completed other (substantive) work
which it needed to complete…before it…(could) deliver the Vessel”.
In other words, where the judge (who relies on Justice Hamblen as he then was for
authority) is referring to “concurrent delay”, she is actually considering the issue of
whether a delay is on the critical path or not.
This judgement also contains numerous peculiarities. They do not need to be set out
for the purposes of this paper, but are set out in ‘The Wrong Path’.
INTENDED TO BE RELIED UPON
46
PART 7: FIRST-IN-TIME CONCURRENCY

For part 7, we have to return to the concurrency discussion, in order to look at the
Society of Construction Law’s 1st in time approach which (for reasons set out in ‘The
Wrong Path’) appears to be devoid of logic and a recipe for meaningless disputes.
As mentioned in Part 4 above, some commentators had attributed a ‘first in time;
meaning to Justice Seymour’s judgement from 2000. For the 5 reasons set out in
Part 4, this author concludes that such an interpretation must be invalid. In fact the
whole judgement is very relaxed as to what might constitute extension of time
entitlement.
The Society of Construction Law consultancy document (2001)
In 2001, the Society of Construction Law sent out to construction professionals in the
UK, a consultation document which was effectively a draft version of a proposed
Protocol on Delay and Disruption.
The document references contractor delay ‘events’. This seems to have been a
novel or relatively concept at the time, as contractor delay was generally regarded as
being the aggregate delay to completion over the original contract period, less the
extension of time for Employer delay.
The document has a policy for assessments undertaken during the project, of
updating (Employer and Contractor) events, “separately and strictly in the sequence
in which they arose”. This seems to mean that before impacting the Employer
(Relevant) event, the full future impact of an ongoing Contractor delay event is to be
incorporated into the programme (to the extent that it is known or can be identified).
Contractor delay which is prospective from the perspective of the date on which the
Employer event arises is included in the programme before the Employer update.
It’s a method which looks at the project not on a day by day basis, but on an event
by event basis; not from the point of view of sequential time, but from the point of
view of sequential programming events. It deals with whole ‘events’ on a first come
first served or first in time basis. It’s important to understand that this effectively
treats all delays as sequential (other than the very rare instance of true concurrency),
as an Employer event which arises after a Contractor event, will only push the
programme out once it exceeds the total delay caused by the Contractor event. In
fact, the concurrency guidance seems to become redundant as a result for
assessments made during the project (and the firm guidance is that the assessments
should be undertaken during the project).
The document appears to contain some hallmarks of a “first in time” approach to

concurrency.
It is submitted that the first-in-time approach is apparent from the words in brackets
in Appendix 5, in which the analyst is told that in regards to “EOT”, “when a
Contractor Risk Event occurs on the same day as an Employer Risk Event, the
effects of the Contractor Risk Event would not reduce any EOT indicated by the
Employer Risk Event alone. The apparent implication being that in other
circumstances, i.e. where the Contractor event starts on a day prior to the Employer
47
event, there is no entitlement until the effects of the Employer event exceed the
effects of the Contractor event.
Secondly, this seems to mirror or have the same effect as the sequential updating
approach for prospective assessments, where in regards to true concurrency the
document states (para 3.7.6) that, “The Employer Risk Event should be analysed
first”, but for general parallel delays states (in paragraph 3.7.7) that “Analyses should
be carried out for each event separately and strictly in the sequence in which they
arose”.
Thirdly, it is submitted that the true concurrency approach introduced, is the essential
building block for a first in time method. This appears to be the first time that the term
“true concurrent delay” had been used71. It seems to be derived from an
interpretation of a short passage of Justice Seymour in the 2000 case referred to as
Royal Brompton v Hammond & Others, where Justice Seymour gave a vague
comment on the meaning of concurrent delay during which he used the word
“already”.
The Society Of Construction Law Protocol 1st edition (2002)
Clearly there was something of an industry backlash to parts of the consultation

document. The (relevant) changes which the industry required from the consultation
document, as reflected in the final Protocol document (1st edition) appear essentially
to have been:
• Remove the recommendation to status the programme with “all known
prospective Contractor delays” before impacting the Employer event
• Provide that the programme be updated for planned Contractor mitigation
measures before updating for Employer risk events
• Provide clarification that no reduction is made to extension of time on account
of the existence of parallel delays
• Remove the separate sequential updating of events in relation to EOT.
All of these were implemented in the final version of the 1st Protocol, except that
conflicting guidance was provided in relation to the 4th point. Paragraph 1.4.7 in the
final version, appeared to confirm that sequential updating was not applicable for
EOT (explained further in The Wrong Path). However a paragraph 3.2.12 titled,
“…dealing with extensions of time during the course of the project” does
nevertheless provide for sequential updating.
It’s not clear whether this was an oversight, or whether it was the SCL’s compromise
of sneaking an argument on the sequential updating/first in time point into the
guidance, quietly via the back door.
In any case, apart from the anomaly in para 3.12, the ‘first in time’ / sequential
updating of whole events approach did not get through the consultation.
71
Assuming it was not used in Mr Pickavance’s 1997 book, Delay and Disruption in Construction Contracts (the
book is no longer available even in the British Library)
48
Adyard (2011)
Some commentators have concluded from the judgement, in particular from the
words, “there is only concurrency if both events in fact cause delay to the progress of
the works and the delaying effect of the two events is felt at the same time”, that
Justice Hamblen has provided that in a situation in which say for example no labour
is available on days 10-20 and on days 16-19 the site is flooded out by exceptionally
inclement weather, then there’s no entitlement to EOT, i.e. a first in time approach to
concurrency.
Such an issue however doesn’t seem to be in Justice Hamblen’s contemplation. For

one thing, the review of the facts of the case is not in anything like enough detail to
be able to establish such a scenario has occurred.
Justice Hamblen reviewed some internal Adyard documents which had at very high
level listed out in broad terms, the types of domestic issues Adyard was or had been
(no distinction was made) having. There was no reference to any dates or such like,
and no cause and effect at all. Justice Hamblen said that the conclusion that there
was no Employer delay (para 294), “was in accordance with the common sense view
of what was actually happening on site.” and that (para 296) “In these circumstances
it is not necessary to address in any detail all the various prospective delay
scenarios considered by the experts”.
There are pages of facts in the judgement, but no cause and effect analysis. It’s
therefore seems impossible that the judge could have formed an opinion on a first in
time concurrency approach because he did not review the facts of the case in
anything like the detail required to have done so.
The conclusion that the case does not support 1st in time is confirmed at paragraph
291 where Justice Hamblen explains Adyard tries to rely on Figure 9 of Appendix D
of the SCL Protocol in support of a contention that sub-critical delay can create
entitlement if it pushes planned completion beyond the Completion Date (if it
exhausts total float, as defined in Section 3.1 of this report).
Figures 1 and 9 from Appendix D of the SCL’s 2002 Protocol are pasted below:
49
Commenting on figure 9 of Appendix D of the SCL Protocol, Justice Hamblen says,

“I find (figure 9)…can be read as showing that the introduction of the
employer's event on path 2 makes that path critical and causative of
concurrent delay in which case again it puts forward the orthodox position.”
With regards to, “I find (figure 9)…can be read as showing that the introduction
of the employer's event on path 2 makes that path critical”
There are 2 possibilities here:
1. The judge has interpreted the vertical part of the float

arrow, which is depicted next to the Employer delayed activity,
as being a part of the activity bar, with the actual duration
thereby depicted as going up to the float line.
2. The judge regarded the activity as critical on account of
the fact that it extended beyond the Completion Date, and irrespective of the
fact that there was a longer path on account of contractor delay (a logically
sensible approach).
Even if 2 is correct, then the following conclusions would still apply, however option 2
seems to be precisely what the Judge is arguing against (as explained in Part 5 of
The Wrong Path), so it seems that his conclusion is per 1 above. This can be seen
as a seventh peculiarity of the judgement (see Part 6 above for peculiarities 1-6).
With regards to his statement, “makes that path…causative of concurrent delay

in which case again it puts forward the orthodox position” . The Judge has
50
concluded that the resulting situation of a delay event making a path jointly critical
with another critical path72, is one of concurrent delay.
But in this situation (or the alternative situation mentioned in point 2 above), the
Contractor delay has occurred before the Employer event (see full image of
figure 9 on page 36).
In fact, the delay events and their effects appear to be entirely sequential with the
impact on the programme of the Contractor event ceasing before the Employer event
had happened (compare figure 1 and 9 showing the delayed activity 1 on Path 1
being complete before the Employer delay).
But he has called it concurrent delay.
His own definition of concurrency (“there is only concurrency if both events in fact
cause delay to the progress of the works and the delaying effect of the two events is
felt at the same time”), would simply not apply in the normal sense of that concept.
Irrespective, and regardless of whether figure 9 of Appendix D to the SCL Protocol

shows entirely sequential delays, the fact that the judge considers (as he does in
figure 9) that a situation where a Contractor event has arisen substantially before the
Employer event constitutes “concurrent delay”, proves that he was not taking a first
in time approach to concurrent delay when he passed comment on the concurrency
authorities.
Saga Cruises (2016)
This is another case which it is understood has been cited in support of a first in time
approach to concurrency. However, as explained in Part 6 above, where the judge
is referring to “concurrent delay”, she is actually (like Justice Hamblen who’s
judgement she cites) considering the issue of whether a delay is on the critical
path or not. In any case, the decision is nothing to do with a situation where, as the
SCL puts it, an Employer delay event “occurs after the commencement of the
Contractor Delay to Completion but continues in parallel with the Contractor Delay”.
There’s no reference in the judge’s reasoning to when delay events arose. The issue
was solely when they finished, and specifically whether they drove completion (and
which party’s item of work they were – some activities were by others on the
employer’s behalf). The judge didn’t even look at events prior to the completion date
stated in the contract, which was 2 weeks prior to completion, or examine when
delays occurred.
In fact, as with the Adyard decision, there were numerous substantial apparent
peculiarities about this judgement. These are set out in the longer report ‘The Wrong
Path’, and do not need to be re-stated in this paper, save to say that it is at best
another case of the judge appearing to be in a muddle.
72
OR (much less likely) a situation of paths which both exceed the contract completion date
51
The Society Of Construction Law Protocol 2nd edition (2017)
15 years have now passed. This time, the SCL has pushed through what it appears
to have wanted to do in the initial draft. It is understood that a consultation process
was again undertaken, however rather than justifying the new concurrency approach
based on feedback from the consultation, it’s stated to be based on recent legal
precedent.
Regardless, the 2nd edition essentially incorporates the 2001 consultancy position in
most regards, by:
• Expressly and unambiguously applying the separate sequential updating rule

to all contemporaneous/prospective assessments (instead of it being included
as a single rogue provision, contradicting and conflicting with the headline
guidance).
• Re-introducing the first in time rule, this time with its own section of express
clauses within the concurrency guidance (instead of being tucked away at the
end of Appendix 5 as it was in the 2001 consultation document).
• And, as a bonus, introducing an express requirement for the Contract
Administrator to actively investigate the existence of concurrent delay when
impacting delay events.
The SCL assert that the first in time approach (or an approach which they
recommend and which has been widely interpreted as first in time), represents the
consistent recent position (as of 2017) taken by the English courts, and further
justifies it on the basis that it reflects critical path theory (although critical path theory
should be irrelevant to the original meaning of concurrent delay, which related to
parallel delays to the same activity or path of works – see further discussion in The
Wrong Path).
It should be noted though that (as this author understands it – See Appendix C) the
re-introduction of the sequential updating approach, essentially renders the
concurrency guidance irrelevant, as (if the sequential updating approach is followed)
all delays will appear sequential. The concurrency guidance in effect appears to be
provided in order to validate the method of updating whole (contractor and employer)
‘events’ in sequence.
See further comment in Part 10.
North Midland Building (2018)
North Midland Construction Ltd v Cyden Homes Ltd (2018), North Midland Building
2018, could be interpreted as building on dicta in Adyard, so as to query whether an
Employer delay event counts, unless it started before a Contractor delay event. It
also permits the parties (possibly notwithstanding the laws on damages) to agree the
matter in the terms (see longer discussion in The Wrong Path).
52
PART 8: TABLE OF CASES

Below is a list of the legal cases reviewed. Non-construction industry cases
(irrespective of whether they made reference to the construction industry) are
shaded out in grey.
In the final 3 columns, entries are included for the approach which the case takes
towards critical path (where applicable) and then the approach which it takes to
concurrency. In some cases there is an entry in the final column (in brackets), which
is an alternative secondary interpretation of the case on the concurrency point.
The categories are identified by numbers which are explained in the key on the next
page. The cases which clearly provide for a ‘new’ approach (compared to 20 th
century) are highlighted in orange (apologies to readers in black and white).
The SCL’s 1st in time concurrency is shown with a red star in the final column.
Judgements which this author has not had full access to and has not read in full are
marked with an asterix in the first column.
Case Year Court Contract Critical Path Concurrency

Dodd v Churton* 1897 C of Appeal A 1
Wells v Army and Navy Co-op Society* 1902 C of Appeal A 1
Amalgamated Building v Waltham Holy Cross UDC* 1952 C of Appeal RIBA 39 A 1
Trollope & Colls v NWMR Hospital Board* 1973 C of Appeal JCT63 A 1
Balfour Beatty Construction Ltd v Chestermount Properties * 1993 High Court JCT 80 A 2 (1)
John Barker Construction Ltd v London Portman Hotel Ltd* 1996 High Court JCT 80 A 1 (2)
Henry Boot Construction (UK) Ltd v Malmaison Hotel 1999 High Court JCT 80 B 3 (2)
Royal Brompton Hospital NHS Trust v Frederick A Hammond & Others 2000 High Court JCT 80 B 2 (*)
Motherwell Bridge Construction v Micafil Vakuumtechnik 2002 High Court FIDIC B 1 (2)
Balfour Beatty Construction Ltd v The Mayor and Burgess of the London Borough of Lambeth 2002 High Court JCT 80 C 4
Hammond 2002 2002 High Court JCT 80 B 1
Skanska Construction UK Ltd (formerly Kvaerner Construction Ltd) v Egger (Barony) Ltd * 2004 High Court JCT A
Great Eastern Hotel v.John Laing Construction * 2005 High Court JCT C
London Underground v. Citylink 2007 High Court Similar to JCT A
Mirant Asia-Pacific Construction(Hong Kong) Ltd v.Ove Arup &Partners International Ltd * 2007 High Court JCT D
City Inn v Shepherd (DISSENTING) 2010 Scottish Inner House
JCT A 2 (1)
City Inn v Shepherd (MAJORITY) 2010 Scottish Inner House
JCT B 5
De Beers UK Ltd v Atos Origin IT Services UK Ltd 2010 High Court - A 1
Adyard Abu Dhabi v SD Marine Services 2011 High Court - C 2&7
Adyard Abu Dhabi v SD Marine Services 2011 High Court - - 2 (4A)
Walter Lilly v Giles Patrick Mackay 2012 High Court JCT C 2 (4A)
Saga Cruises v Fincatieri 2016 High Court - D 7
Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd * 2017 High Court NEC D
Fluor v Shanghai Zhenhua Heavy Industry Co, Ltd 2018 High Court JCT C
Thomas Barnes v Blackburn with Darwen Borough Council 2022 High Court JCT B 1 (2)
53
KEY TO TABLE OF CASES Crit Path Concurrency

CRITICAL PATH NOT APPLICABLE A
UNCLEAR ON WHETHER CRITICAL PATH APPLICABLE B
PROSPECTIVE CRITICAL PATH ANALYSIS REQUIRED C
RETROSPECTIVE CRITICAL PATH ANALYSIS REQUIRED D
AS REASONABLY-PLANNED IMPACTED 1
ACTUAL PROGRESS NEEDS TO BE CONSIDERED: EMPLOYER EVENTS HAVE TO BE A CAUSE
OF DELAY TO AN IN-PROGRESS OR READY-TO-COMMENCE ACTIVITY 2
DELAY IS A MATTER OF FACT IN EACH CASE 3
DISREGARD EMPLOYER DELAYS WHICH ARE PARALELL WITH CONTRACTOR DELAYS 4
NO ENTITLEMENT EXCEPT FOR TURE CONCURRENCY 4A
ATTRIBUTE DELAY ON A COMMON SENSE BASIS TO THE DOMINANT CAUSE, OR ELSE
APPORTION DELAY 5
CONCURRENCY REFERS TO THE REQUIREMENT FOR DELAYS TO BE ON THE CRITICAL PATH 7
FIRST IN TIME *
Note:
In some cases I have used a B code for critical path cases to indicate uncertainty. In
the cases of Malmaison and Motherwell Bridge this is because the judges’
understanding of the meaning of the term ‘critical path’ appeared unclear. In the case
of Royal Brompton, it is because the judge appeared to be following the approach
taken by both experts and does not say that he considers it to be the right approach.
In the case of ‘Hammond 2002’ and Thomas Barnes, it’s because the judge referred
to a critical path approach but actually seemed to implement something different, or
at least a very light interpretation of a critical path. The majority judgement in City Inn
is also marked as a B because although Lord Drummond did not favour a critical
path analysis, he did not say that the approach could not be used.
Note:
There may be other cases not included in the analysis.
Note:
Saga Cruises v Fincantieri (2016) is included in the chart, but note that in that case
there was no extension of time clause, and the judge was applying findings to a
damages clause.
54
PART 9: APPROCHES TAKEN TO EOT IN 2022

In the 2nd edition of the Society of Construction Law’s Protocol on Delay and
Disruption (2017), 10 different methods of delay analysis were recognised as valid.
Of those, the document focuses on and describes 6 methods, all of which are critical
path methods, namely:
• time impact analysis
• time slice analysis
• as-planned versus as-built windows
• retrospective longest path analysis
• collapsed as-built
• project wide retrospective as-planned versus as-built
The document also recognises: time chainage analysis, line of balance analysis,
resource curve analysis and earned value analysis.
With regards to ‘Impacted as-planned analysis’ which appears to be closest to the
traditional approach described in this document, and closest of the methods
described by SCL to that which ‘The Wrong Path’ suggests as being broadly the
most appropriate approach, the SCL states that it may be applicable,
“where…dictated by the terms of the contract and/or where the delay events being
considered occurs right at the outset of the works”. In other words, in very limited
circumstances.
For after the event assessments, the Society of Construction Law state that,
“prospective analysis of delay … may no longer be appropriate”.
Retrospective methods referred to by SCL include the time slice analysis method
and the as-planned v as-built windows analysis method, which are understood to
now be the two most widely adopted approaches internationally for the assessment
of extension of time entitlement (forensically i.e. when done after the project), as
explained (by this author’s interpretation) in a helpful and informative article titled “A
Statistical Review of Delay Analysis Techniques Over the Last Decade”73 by Mr
François Michaud of HKA, who are recognised as one of the leading professional
consultancies engaged in construction claims and disputes.
The article appears (to the author of this paper) to suggest that comfortably the most
widely used method internationally (for forensic/retrospective assessments) in HKA’s
recent experience is As-planned v As-built critical path method.
73
https://www.hka.com/a-statistical-review-of-delay-analysis-techniques-used-over-the-last-decade/
55
PART 10: A SUMMARY HISTORY OF EXTENSION OF TIME (UK)

1. The conventional approach to extension of time in the UK from the 19th
century until the 1990s, was to assess the date when the Contractor could
reasonably have finished the Works taking into account the agreed period for
the contract scope, and taking account of additional Employer risk events.
Contractor delay was irrelevant to the calculation. This was an exercise done
by the Architect/Contract Administrator/Engineer based on its judgement.
2. In Balfour Beatty v Chestermount (1993) it was held that it was the longest
aggregate path of Employer delays which counted i.e. preceding contractor
delays were not in effect all wiped out by an Employer risk event occurring
well past scheduled completion.
3. The John Barker case (1996) provided (because the Architect was appointed
solely by the Employer) that extension of time had to be calculated/capable of
some kind of demonstrability, and not based merely an asserted impression.
4. The critical path cases (starting arguably in 1999 with Malmaison and clearly
in 2002 with Lambeth) completely change question 1. They ask not ‘what is
the longest (or the latest) path of Employer delays?’, but rather ‘which
Employer delays were on (what was at a particular point in time) the project's
longest path?’. This approach is based upon a meaningless and logically
absurd interpretation of 'prevention' (see Appendix C) but has somehow come
to be accepted by the construction industry.
5. The early concurrent delay cases (e.g. Royal Brompton 2000) could generally
be said to have asked whether a theoretical Employer delay (v As-Planned
intent) should be taken into account if (or to the extent that) the Contractor
was not even ready to undertake the activity which the Employer event related
to74. Royal Brompton gives essentially the same answer as the 1993
Chestermount case: no, the correct approach is to aggregate Employer delay,
effectively to ‘in progress’ items75. It should be noted that the criticality issue is
not the same issue as considered by the concurrency cases, even though
they both involve overlapping delays. The concurrency cases could be said to
ask whether it matters whether the Employer event did not cause any actual
delay to anything. The ‘critical path cases’ ask whether the delay from the
Employer event - at the time that it occurred - further extended the expected
date of project completion.
6. The Adyard (2011) and Saga Cruises (2016) judgements conflate the two
issues by applying concurrency authorities to the critical path question. The
judge in Adyard makes general – hard to understand – statements about the
concurrency authorities, in part relying on a 2002 Society of Construction Law
paper which appears on inspection to have been misleading/misconceived.
7. The SCL relies in its 2017 Protocol 2nd edition, on unidentified case law
(presumably Adyard and Saga Cruises), to justify a first-in-time approach to
concurrency (although the findings of Adyard and Saga Cruises appear to
relate to the relative float of the activities, not to the respective timings of
74
Malmaison (1999), could be interpreted in the same way as Royal Brompton above (Justice Seymour appears
to have given this interpretation to that case in Royal Brompton), but could also be interpreted as suggesting
that periods of delay should be identified and allocated between the parties (‘effect and cause’ method to
assessing delays). Keating on Building Contracts may have taken this interpretation in its 7th edition in 2000,
but in its 8th edition in 2006 stated that a “dominant cause” approach may no longer be appropriate.
75
some cases e.g. De Beers, the dissenting judgement in City Inn and possibly Motherwell Bridge seem to say
‘yes’, Contractor progress does not matter at all.
56
delays which impact upon them). The SCL now appear to describe
concurrency in terms of delays to different paths of work, i.e being
indistinguishable from the criticality question, rather than delays to (or at least
rather than solely to) events on the same (critical) activity.
8. In North Midland Building (2018), the Society of Construction Law’s (now)
President Lord Justice Coulson, gives a legal definition to concurrent delay
based on the 2002 Society of Construction Law paper, and could also be
interpreted as building on dicta in Adyard so as to query whether an Employer
delay event counts unless it started before a Contractor delay event. The
judgement also permits the parties (possibly notwithstanding the laws on
damages) to agree such matters in the express terms.
9. In a 2019 Society of Construction Law paper, Lord Justice Coulson says that
concurrency will, “continue to supply work to lawyers and arbitrators for years
to come”.
10. In Thomas Barnes (2022), the judge said that she was taking a critical path
approach, but rejected the method by the Contractor which in fact appeared to
have been the actual critical path approach. On concurrency, she appeared to
helpfully simplify the situation by returning to a Royal Brompton approach as
described in this paper, or arguably a pre-Chestermount position.
11. The contemporary method typically taken today is one or more of 6 forms of
(the conceptually and logically invalid) critical path analysis, combined with a
first in time approach to concurrent delay. The two most commonly used
methods forensically (after the project) have been identified as being
retrospective ‘effect and cause’ approaches, whereby a period of delay to the
critical path is identified and effectively allocated between the parties. It’s not
yet clear what effect if any Thomas Barnes will have.
With regards to point 7, this paper notes that the SCL’s draft Protocol from 2001
appears to have included some hallmarks of a first-in-time approach to concurrency
(then seemingly in regards to delays on the same path), which mirrors its method of
the sequential updating of whole employer and contractor events (included in the
2001 draft, partly included in the 2002 final version of the Protocol 1 st edition, and re-
included in full in the 2017 Protocol 2nd edition) and which in fact in effect makes any
concurrency guidance irrelevant and takes a first in time approach anyway.
The Protocol committee may have had the view that sequential updating of events
was the most practicable way to measure Contractor risk events (which it needs to
do in order to take the critical path approach). However it is also noted that the first-
in-time / sequential updating approach also naturally introduces extensive grounds
for disputes on questions such as what constitutes a single ‘event’ and when did it
start (there is a longer discussion in The Wrong Path).
With regards to the judiciary, and this is not intended to be deliberately rude but
somebody needs to point it out, the most obvious conclusions appear to be that they
have either collectively lost a grip on the subject matter and are to an extent bluffing
their way through it, or that they are deliberately trying to make things as confusing,
complicated and contentious as possible. Either way it seems clear that the
beneficiaries are the “lawyers and arbitrators” which Lord Justice Coulson refers to in
his 2019 paper, and other disputes professions, with the parties to construction
contracts (literally) paying the cost.
57
The reason why the concurrency judgements are arguably unhelpful and confusing,
is that instead of relatable examples, we are given words and phrases largely in
isolation such as “concurrent”, “truly concurrent”, “parallel”, “causative potency”,
“effective cause”, “dominant”, “apportion”. Even normally straightforward words such
as “hypothetical” “theoretical, “actual”, “impact”, “effect”, “arose”, “independent”,
“already” become a riddle which require a pen and paper.
One definition we do have – of concurrent delay (“a period of project overrun which
is caused by two or more effective causes of delay which are of approximately equal
causative potency”), itself contains one subjective variable and two undefined terms.
And whilst it has a legal definition, we don’t know for sure what the legal significance
of it is, even if we can work out how to identify it.
It's not only difficult for an outsider to understand what the judges mean, but even
whether the judges themselves are merely recycling one another’s words without
really appreciating what they are intended to signify or what the logic is which lies
behind them or fully what they significance is.
For all the confusing talk about concurrency however, the judiciary’s fundamental
mistake remains the inexplicable adoption of the critical path.
58
PART 11: APPENDICES

APPENDIX A :
A QUICK LOOK AT OVERSEAS PRACTICES UP TO 1999
United States of America
A paper from the United States of America titled: “Use of Critical Path Method
Techniques in Contract Claims: Issues and Developments, 1974 to 1988”, (Source:
Public Contract Law Journal Vol 18, No.2 (1988), pp 338-391), Published by
American Bar Association, appears to try to justify the use of critical path method in
delay claims and reviews the history of critical path claims in the American courts.
The paper refers (on page 339, effectively page 2 of the paper) to an earlier paper by
the name of “The Use of Critical Path Method Techniques in Contract Claims”
(1974), and states (on page 340, effectively page 3) that, “The techniques and
principles described in the 1974 article have gained widespread acceptance”.
The structure of the paper is quite confusing, and the chronology of events hard to
establish, from various citations scattered around the document. It can also be noted
that one has to find a footnote on page 375 (effectively page 38 of the paper) to find
out that, “ ‘extended duration claim’ as used in this article refers to a contractor’s
affirmative claim for delay costs”, i.e. not extensions of time. If one does not notice
this footnote, then much of the document would appear to have a different meaning.
The authors state (page 341) that, “The basic technique used in the evaluation of the
CPM on contract claims is to compare the as-planned CPM with the as-built CPM”.
The authors state (page 347) that, ”The CPM analysis must answer two questions
to provide sufficient proof of an extended duration claims: first, when did the
contractor actually complete its work; and second, when would the contractor
have completed its work absent government delays. The difference should be
the measure of government caused delays”.
We know from the footnote on page 375 (effectively page 38 of the paper), that in
the paper, the term “extended duration claim” actually refers to a costs claim, rather
than an extension of time claim. But the principle must also relate to extensions of
time. A critical path analysis measures the (employer) delays on the critical path.
That’s the case irrespective of whether the results of the analysis are used for an
assessment of extension of time, or an assessment of prolongation costs.
So the authors of the paper presented by the American Bar Association (which
appears to have been re-circulated in 2014), are effectively arguing that the purpose
of a critical path analysis in a delay claim (which will be the same for a ‘time claim’
exercise or a ‘money claim’ exercise), is to measure the date when the contractor
would have completed its work absent employer delays.
But (as explained in Section 3.2 of this paper above), this is NOT what critical path
analysis measures. The apparent premise of the paper (to the extent that it is taken
59
as supporting a critical path approach, which it seems a reasonable conclusion)

therefore appears to be flawed.
The authors also state (page 363) that, “The objective of CPM analysis is to
segregate delays that delay the critical path and, therefore, delay the entire project”,
however whilst a CPM does measure delays to overall completion, it is very rare that
such a delay event (or any delay event) delays everything in the whole programme,
or the entire project. Furthermore, as explained within The Wrong Path (and as is
obvious), sub-critical activities can in part delay the project beyond the completion
date, which appears to be a more pertinent issue to extensions of time than the issue
identified by the author of the ABA paper (see Part 2 above).
Another confusing point of the ABA paper appears to occur where in a discussion on
concurrent delay, the authors state (page 379) that, “For purposes of establishing
entitlement to a time extension, a contractor need only demonstrate that concurrent
causes of delay resulted in a specific amount of delays to project completion. The
contractor need not demonstrate that project completion would have occurred earlier
than actual completion but for the government’s actions”. This seems to arguably
conflict with the fundamental premise of the author’s argument of the purpose of a
CPM at page 347 (see above). At least no justification is provided as to why a CPM
needs to measure delay ‘but for Employer delays’ in general terms (page 375), but
not on that basis in regards “concurrent causes” of delay. The authors cite a case by
the name of, “Cline Construction Co”76 (1984) in which the judge held that,
“Concurrent delay does not bar extensions of time, but it does bar monetary
compensation”. The author suggests similar decisions were reached in decisions
referred to as “Titan Pacific Construction Corp.”77 (year unknown) and “Utley-James”
(1988)78.
I have done the best I can to go through the cases cited in the paper, in order to try
to identify case law which provides that an Employer can successfully defend an
extension of time claim on the basis that the Employer delay was not on the critical
path. The following cases are noted:
• The author states (page 368) that a case by the name of “Montgomery-Macri
Company and Western Line Construction Co”79 (1963) “holds that the
contractor receives time extensions only to the extent that project completion
is actually delayed by a particular delay…Whether or not a delayed activity is
on the critical path becomes a primary consideration for determining whether
a contractor receives a time extension”.
• The author states (page 368) that a case by the name of “Blackhawk Heating
& Plumbing Co., Inc” (1975)80, found that there was no entitlement to
76
SBCA No. 28600, 84-3 BCA f 17,594. (1984)
77
ASBCA Nos. 24,148, et al., 87-1 BCA ¶ 19,626, aff’d 17 Cl. Ct. 630 (Cl. Ct. 1989)
78
Utley-James, Inc. v. United States, 14 Cl. Ct. 804 (1988).
79
IBCA Nos. 59, 72, 1963 BCA K 3819 a (1963)
80
(1975) SBCA No. 2432, 76-1 BCA 11
60
extension of time, because the Contractor had not demonstrated that the
employer’s delays were on the critical path. The author quotes the court in
that case (on Page 380): “Since liquidated damages are only imposed for
delays in project completion, it is manifest that only those delays should be
considered which actually affect project completion. By their nature the
delayed activities involved must necessarily lie on the critical path as it was
actually completed”.
• The author states (page 362) that in a case by the name of “Dawson
Construction Company, Inc” (1975)81, “the contractor was denied an extension
of time even where the government had caused delays to certain
activities….The Board denied the appellant’s claim because there was no
evidence that the critical path for the project was affected…since (the
affected) activity contained sufficient float to absorb the delay”
• The author cites a case by the name of “G.M. Shupe, Inc. v United States”
(1984)82 as having held that, “The reason that the determination of the critical
path is crucial to the calculation of delay damages is that only construction
work on the critical path had an impact upon the time in which the project was
completed…Delay involving work not on the critical path generally had no
impact on the eventual completion date of the project”. The author said that
this decision related to, “the time extension process”.
• The author cites (page 362) a case by the name of, “Titan Pacific
Construction Corp” (1987)83, and comments that, “the court allowed an
extension of time, on the basis that the Employer delays were on the critical
path”.
It seems that in many of these cases, the contract expressly purported to require
a critical path analysis for an extension of time.
It should be noted in regards to the reasoning of the judges in the Blackhawk and
Shupe cases, that the reality is that an extension of time clause is measuring
neither liquidated damages nor the project completion date. An extension of time
clause measures employer delay (beyond the contract completion date). The
justification suggested in those judgements, is actually no justification at all.
Although no or limited commentary by the author of the paper is provided to that
effect, it seems that some of the authorities reviewed in the paper implied that
critical path analysis would not be appropriate:
• The authors state (pages 341/342) that in a case by the name of, “Haney v
United States” (1982)84, “The court…found that the original CPM was realistic
and the work could have been performed in accordance with that schedule
but for the government delays”. In this case, it appears that the contractor
presented its case using critical path method, which was accepted by the
court, however the reference to “could have finished” (rather than “would have
81
GSBCA No. 3998, 75-2 BCA ¶ 11,563
82
5 Cl. Ct. 662, 728 (1984)
83
ASBCA Nos. 24,148, et al., 87-1 BCA ¶ 19,626, aff’d 17 Cl. Ct. 630 (Cl. Ct. 1989)
84
30 Ct. Cl. 148, 676 F.2d 584 (1982).
61
finished”), appears to refer to a fit for purpose approach (as defined in Part 2
above) not a critical path approach. The authors of the ABA paper do not
comment on this point.
• The author cites (page 342) a case by the name of, “Fortec Constructors v
United States” (1985)85, and comments that, “The government in Fortec
claimed the contractor was not entitled to a time extension because the
additional work did not appear on the critical path of the CPM schedule…the
court rejected the government’s attempt to rely on this incomplete CPM to
deny recovery...”. The court held, “Reliance upon an incomplete and
inaccurate CPM to substantiate denial of time extensions is clearly improper
(notwithstanding that) the contract states that the CPM shall be used to
evaluate….the allowance of time extensions”. This arguably appears to
suggest that the court was reluctant to take a critical path approach even
though it was stipulated as a contract requirement.
The discussion of the Santa Fe case also appears to be potentially significant.

The authors explain (page 363) that in a case by the name of “Santa Fe Inc”86
(1984), that the contractor raised what is effectively a Balfour Beatty v Chestermount
argument to the effect that an extension should be given up to the last
employer/government risk event and all preceding delay excused, which (as in
Balfour Beatty) failed.
The authors also explain that, “the contractor asserted that any work sequence or
CPM path of activities that ran past the contractually required completion date
is critical and delays on these work sequences due to changes are on the critical
path”.
The authors provide though what seem to their own thoughts on the matter, namely
that, “Because a project extends beyond the contract completion date, this does not
mean that the longest chain of activities through the network in terms of time and the
delays which affect that chain cannot be determined”.
It seems likely that this argument also failed, because the authors do later state
(whilst not directly relating this conclusion to the argument on the meaning of critical
path) that, “Santa Fe may not apply to all cases because the peculiar language in the
Santa Fe contract requiring that the delay analyses show that the “predicted”
completion date was delayed. This naturally would represent the chain of activities
with the highest negative slack”. This conclusion by the authors also seems to
potentially case into doubt, the inferred meaning of “critical path” in the other cases
(see Section 3.3 above).
Furthermore, on page 372, a citation from the court reveals that the contract
provides that delays which, “do not affect the extended and predicated contract
completion dates shown by the critical path…will not be the basis for a change to the
contract completion date”, and seemingly that the court appears to have rejected
85
8 Cl. Ct. 490 (1985)
86
(1984) 4-2 BCA 11 17,341
62
claims which were not related to such a path of activities. However it seems clear
from the citation provided from the judgement that the court’s adherence to this
contractual stipulation was at least partly on the basis that, “the appellant has offered
little evidence that the change orders extended its performance period”. Again
therefore, in other circumstances it seems arguable that the court may have been
hesitant to enforce a stipulation that extension of time will only be granted where
employer/government delays “affect the extent and predicated contract completion
dates”, or similar.
All in all, the paper seems to be something of a muddle. Certain things do seem to
be apparent from the paper though, namely that:
1. The criticality argument was given much more consideration in the US, much
earlier than it was in the U.K. (although there seems to be some doubt as to
what “critical path” was intended to mean).
2. It seems that government construction contracts as early as the 1970s (or
perhaps even the 1960s) expressly provided (at least in some cases) that
there should only be extension of time entitlement if the Employer delay was
on the critical path, or even more explicitly, if it caused additional delay to
forecast completion.
3. In none of the cases reviewed by the author, does the court appear to have
considered the application of ‘no loss’ laws or restitutionary damages
principles for sub-critical employer/government delays, as considered in Part
4 of The Wrong Path.
GCC/ Middle East
Although used globally to an extent, it is understood that the FIDIC forms of contract
are most widely used in the Middle East, and that in that region it has traditionally
been by far the most widely adopted suite of contracts.
It’s noted that the FIDIC Red Book, the 4th edition of which was published in 1987,
contained the following extension of time clause: “44.1
“In the event of….being such as to fairly entitle the Contractor to an extension
of the Time for Completion of the Works, or any Section or part thereof, the
Engineer shall, after due consultation with the Employer and the Contractor,
determine the amount of such extension and shall notify the Contractor
accordingly, with a copy to the Employer”.
Clearly there is no contemplation here of a critical path analysis.
The old Red Book continued to be used widely for several years after the publication
of a new Red Book 1st edition by FIDIC in 1999. It may be fair to say that most of
Dubai was built on the old red book (others would be better placed to confirm this).
As analysed in The Wrong Path, FIDIC 99 takes a different approach, and could be
interpreted as requiring a critical path analysis (although The Wrong Path concludes
that that is not clear).
63
Singapore
Although not reviewed by this author, it’s understood that critical path analysis was
approved for extension of time assessment in the 1995 Singapore case of Aoki Corp
v Lippoland (Singapore) Pte Ltd87
This international review is clearly not exhaustive, and other examples of a

critical path approach in non-UK jurisdictions may have arisen.
87
[1995] 2 SLR 609.
64
APPENDIX B: CLAUSE 25 OF JCT 80

The case law from construction industry cases, relates almost exclusively to the JCT
Standard Building Contract.
Clause 25 of JCT 80 Standard Building Contract, was titled “Extension of time”. Its
provisions included the following (emphasis added):
“25.2.1.1
If and whenever it becomes reasonably apparent that the progress of the
Works is being or is likely to be delayed, the Contractor shall forthwith
give written notice to the Architect of the material circumstances
including the cause or causes…”
“25.3
.1 If, in the opinion of the Architect/Contract Administrator, upon receipt
of any notice, particulars and estimate
.1.1 any of the events which are stated by the Contractor to be the cause
of the delay is a Relevant Event and
.1.2 the completion of the Works is likely to be delayed thereby beyond

the Completion Date
The Architect/Contract Administrator shall…give an extension of time by

fixing such later date as the Completion Date as he then estimates to be
fair and reasonable”
An additional requirement is included in clause 25.3.3 for the Architect to – not

earlier than the Completion Date and not later than 12 weeks after Practical
Completion - provide any further extension of time on a retrospective basis as
is “fair and reasonable”.
Since 2005, the words, “The Architect/Contract Administrator shall…give an

extension of time by fixing such later date as the Completion Date as he then
estimates to be fair and reasonable”, were preceded by, “save where these
Conditions expressly provide otherwise” (which appears to be reciprocal with the
introduction of a requirement for the Contractor to give particulars of delays which
are not Relevant Events).
For the purposes of this discussion, the requirements of clause 2.5.3.1, in situations
in which the Architect has been notified of a delay or likely delay in the
progress of the works, can be summarised as follows:
• The Architect decides whether the completion of the Works is delayed beyond
the Completion Date by a Relevant Event
• If so, the Architect shall fix an EOT on the basis of a fair and reasonable
estimate of the delay beyond the Completion Date, by the Relevant Event
65
APPENDIX C:
ANALYSIS OF THE BASICS OF CRITICAL PATH METHOD
The approach which critical path analysis takes to 35 very simple and rudimentary
delay scenarios, is analysed in this appendix.
In each example, delays introduced are indicated in black or – where they are on the
‘critical path’ – in either red or purple. Readers can review any of the examples in
order to check the logic.
In 32 of the 35 examples, a contractor delay event is introduced on one path of work,
and an employer delay event is introduced on the other path of work. In the other 3
examples (examples 32-34), employer and contractor events are introduced on a
single path of work (the calculations in examples 32-34 assume no concurrency
rules).
In some cases, the path of work which is impacted by the employer event is in (as-
planned) float. In some cases the path impacted by the contractor event is in as-
planned float. In some cases neither path has float and they are jointly critical.
In some cases, the contractor delay starts first. In some cases the employer delay
starts first.
In some cases, the contractor delay is longer than the employer delay. In some
cases the employer delay is longer than the contractor delay.
For completeness, In some of the examples (examples 23-28) which include
overlapping delays, two different analysis are undertaken, one analysis assessing
the delays strictly in a day by day sequence, and one analysis taking the Society of
Construction Law approach (explained elsewhere) of assessing delay events in full
in the sequence in which they start.
In the case of examples 31 and 32, slightly more complex scenarios are introduced,
where there are multiple (2) periods of delay by each party.
The results of each example are brought forward into the table at the front of the
appendix (split over 2 pages for presentation purposes due to the width of the results
table).
Some to note in the tables are:
• Where ‘extra-over Employer delay’ is a negative figure (i.e. where the
Contractor delay to completion exceeds employer delay to completion), it is
recorded in the table as 0 extra-over Employer delay.
• Where some entitlement is awarded, the ‘result’ column entry is highlighted in
red (otherwise entitlement is 0).
• Where the analysis follows the fit for purpose approach, the reason why is
highlighted in green.
The main take out from the results is that the critical path analysis measures one of
the following:
66
• The total delay caused by the employer irrespective of contractor delay, i.e.
delay but for contractor delay (the fit for purpose or prevention – properly so
called – approach described above), or
• The additional delay caused by the employer on top of contractor delay, or
the ‘extra over’ employer delay, or the delay but for employer delay, or the
total delay caused by the contractor irrespective of employer delay.
The situations in which the analysis takes the fit for purpose approach, are those
where either i) the as-planned situation had the activity which was in fact hit by the
contractor event, sufficiently in float so as to exceed (or match) the period by which
the contractor event in fact preceded the employer event, or ii) the employer delay
event happened first.
The only ‘exceptions’ to these rules are in examples 33-35 where there was one path
of events only, and the author analysed concurrency on the basis of creating
entitlement where there are parallel competing causes of delay.
Critical path analysis gives full fit for purpose extension of time entitlement for all
employer delay beyond the completion date, where the period that the employer
event starts earlier than a contractor event, exceeds the period of float belonging to
the employer event. In other circumstances, it gives entitlement based on the ‘extra
over’ delay caused by the employer, i.e. delay ‘but for’ employer delay.
On most construction projects, where there are multiple delays by both parties,
critical path analysis takes the approach shown in examples 31 and 32, which is a
hybrid between the two approaches.
The extent to which the overall result leans towards one method or the other will
depend randomly upon the float which affected activities had on an as-planned
basis, and completely randomly upon the order in which the delay events arose.
Some other points to note are:
• In 6 examples an assessment was done on both a sequential time basis and
on a sequential event basis. In 2 cases the analysis gave the same result. In 3
cases the analysis gave more entitlement for the sequential time assessment.
In one case (example 28), where the employer affected event was in float and
where a contractor event occurred during the employer event, the sequential
event approach gave more entitlement.
• In 4 of the 6 cases, a situation of concurrent delay occurred when using the
sequential time approach (highlighted in blue on the summary page and in the
example). In none of the cases did concurrent delay arise when using the
sequential event approach. This supports the author’s conclusion that the
Society of Construction Law’s method means that concurrent delay will not
arise.
• The ‘extra over’ period of delay is always the Employer delay beyond
completion less the Contractor delay beyond completion.
The table of results is set out below, followed by the worked examples (as noted, for
examples 1 and 2 please see Section 5 of The Wrong Path):
67
Starting Result (Employer

Ref Employer delay Employer delay Float Other comment delay as EOT)
1 Later Shorter None 'Extra over' only
2 Same Same E 'Extra over' only
3 Later Longer None 'Extra over' only
4 First Shorter None All
5 First Longer None All
6 Later Shorter None 'Extra over' only
7 Later Shorter C 'Extra over' only
8 First Longer E All
9 First Shorter C All
10 Later Longer E 'Extra over' only
11 First Longer C Always in float All
12 Later Shorter E Always in float No employer delay
13 Later Longer C Always in float All
14 First Shorter E Always in float No employer delay
15 Later Shorter C 'Extra over' only
16 First Longer E All
17 First Shorter C All
18 Later Longer E 'Extra over' only
19 First Longer C All
20 Later Shorter E 'Extra over' only
21 Later Longer C All
22 First Shorter E All
23 First Same E SEQUENTIAL TIME All
23 First Same E SEQUENTIAL EVENTS All
24 Later Same C SEQUENTIAL TIME All
24 Later Same C SEQUENTIAL EVENTS 'Extra over' only
25 Middle/Shorter C SEQUENTIAL TIME All
25 Middle/Shorter C SEQUENTIAL EVENTS 'Extra over' only
26 Wider/Longer E SEQUENTIAL TIME All
26 Wider/Longer E SEQUENTIAL EVENTS All
27 Middle/Shorter C SEQUENTIAL TIME All
27 Middle/Shorter C SEQUENTIAL EVENTS 'Extra over' only
28 Wider/Longer E SEQUENTIAL TIME 'Extra over' only
28 Wider/Longer E SEQUENTIAL EVENTS All
29 Employer, contractor, employer, contractor None MULTIPLE EVENTS All
30 Contractor, employer, contractor, employer None MULTIPLE EVENTS 'Extra over' only
31 Contractor, employer, contractor, employer None MULTIPLE EVENTS HYBRID
32 Employer, contractor, employer, contractor None MULTIPLE EVENTS HYBRID
33 Contractor, employer N/A ONE PATH All
34 Contractor, employer, contractor, employer N/A ONE PATH All
35 Contractor, both, employer, contractor, employer
N/A ONE PATH All
68
Total delay Employer Delay 'But Contractor Delay 'But Additional

Result (Employer to delay to for' the delay to for' the delay caused Extension LD
Ref delay as EOT) completion completion Contractor completion Employer by Employer of time liability
1 'Extra over' only 4 2 2 4 4 0 0 4
2 'Extra over' only 26 25 25 26 26 0 0 26
3 'Extra over' only 7 7 7 5 5 2 2 5
4 All 7 5 5 7 7 0 5 2
5 All 7 7 7 5 5 2 7 0
6 'Extra over' only 7 5 5 7 7 0 0 7
7 'Extra over' only 3 2 2 3 3 0 0 3
8 All 3 3 3 2 2 1 3 0
9 All 3 2 2 3 3 0 2 1
10 'Extra over' only 3 3 3 2 2 1 1 2
11 All 6 6 6 0 0 6 6 0
12 No employer delay 6 0 0 6 6 0 0 6
13 All 6 6 6 0 0 6 6 0
14 No employer delay 6 0 0 6 6 0 0 6
15 'Extra over' only 4 4 4 3 3 1 1 3
16 All 4 3 3 4 4 0 3 1
17 All 4 4 4 3 3 1 4 0
18 'Extra over' only 4 3 3 4 4 0 0 4
19 All 6 6 6 1 1 5 6 0
20 'Extra over' only 6 1 1 6 6 0 0 6
21 All 6 6 6 1 1 5 6 0
22 All 6 1 1 6 6 0 1 5
23 All 2 1 1 2 2 0 1 1
23 All 2 1 1 2 2 0 1 1
24 All 2 2 2 1 1 1 2 0
24 'Extra over' only 2 2 2 1 1 1 1 1
25 All 2 1 1 2 2 0 1 1
25 'Extra over' only 2 1 1 2 2 0 0 2
26 All 2 2 2 1 1 1 2 0
26 All 2 2 2 1 1 1 2 0
27 All 1 1 1 1 1 0 1 0
27 'Extra over' only 1 1 1 1 1 0 0 1
28 'Extra over' only 1 1 1 1 1 0 0 1
28 All 1 1 1 1 1 0 1 0
29 All 11 11 11 7 7 4 11 0
30 'Extra over' only 11 7 7 11 11 0 0 11
31 HYBRID 9 9 9 9 9 0 2 7
32 HYBRID 9 9 9 9 9 0 7 2
33 All 8 5 5 3 3 5 4 3
34 All 14 7 7 7 7 7 *7* *7*
35 All 16 7 7 11 11 5 *7* *9*
69
For examples 1 and 2, please see Part 5 of the paper The Wrong Path.
Examples 3,4,5,6
As-Planned (for examples 3-6, and 29-32):
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
Structure A
Structure B
EXAMPLE 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 4
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 5
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Structure A
Contractor delay
Structure B
Employer delay
70
Examples 7-22
As-planned, for examples 7-22:
1 2 3 4 5 6 7 8 9 10
Activity 1
Activity 2
EXAMPLE 7
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 8
1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
EXAMPLE 9
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 10
1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
71
EXAMPLE 11
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 12 1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
EXAMPLE 13 1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 14 1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
72
EXAMPLE 15
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 16
1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
EXAMPLE 17
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 18
1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
EXAMPLE 19
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay E
Activity 2
Contractor delay
EXAMPLE 20 1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay E
Activity 2
Employer delay
73
EXAMPLE 21 1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 22 1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
Examples 23-28
1 2 3 4 5 6 7 8 9 10
Activity 1
Activity 2
PLEASE NOTE: FOR EXAMPLES 23-28 THERE IS AN ANALYSIS DONE BASED ON SEQUENTIAL EVENTS
(PER SCL) AND AN ANALYSIS DONE PER SEQUENTIAL TIME (see Part 5 of The Wrong Path)
EXAMPLE 23 SEQUENTIAL TIME

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 23 SEQUENTIAL EVENTS

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
74

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
75
1 2 3 4 5 6 7 8 9 10
Activity 1
Activity 2

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
76
Examples 29,30,31,32
EXAMPLE 29
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 30
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 31
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 32
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29
Structure A
Contractor delay
Structure B
Employer delay
77
Examples 33,34,35
EXAMPLE 33
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Contractor delay
Employer delay
EXAMPLE 34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34
Contractor delay
Employer delay
EXAMPLE 35
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36
Contractor delay
Employer delay
ROBERT TUSTIN
78
PART 12: BIBLIGRAPHY AND TABLE OF CASES

BIBLIOGARPHY
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François Michaud, HKA 55
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Building Contract Claims, 3rd edition, Powell-Smith & Sims, Blackwell Science
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Casewatch Peak v McKinney Foundation Ltd, Doyles Construction Lawyers,
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79
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80
TABLE OF CASES
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51,56
Aoki Corp v Lippoland (Singapore) Pte Ltd [1995] 2 SLR 609 64
Amalgamated Building Contractors v Waltham Holy Cross UDC (1952)2 All England 452 8
Balfour Beatty v Chestermount Properties (1993) 62 BLR 12 10,11,22,31,34,36,56,62
Balfour Beatty Construction Ltd v The Mayor and Burgess of the London Borough of
Lambeth [2002] EWHC 597 (TCC) 19,32,33
Blackhawk Heating & Plumbing Co., Inc (1975) SBCA No. 2432, 76-1 BCA 11 60,61
Blue Circle Industries plc v Holland Dredging (UK) Ltd (1987) 37 BLR 40 23
City Inn v Shepherd [2010] ScotCS CSIH 68 22,34,41,56
Cline Construction Co (1984) SBCA No. 28600, 84-3 BCA f 17,594. 60
Dawson Construction Company, Inc GSBCA No. 3998, 75-2 BCA ¶ 11,563 61
De Beers UK Ltd (formerly Diamond Trading Co Ltd) v Atos Origin IT Services UK Ltd
[2010] EWHC 3276 (TCC) 22,33
Dodd v Churton (1897) 1 QB 562 4,5,6,24
Duncanson v Scottish Investment Co [1915] SLR 790 6
H Fairweather v London Borough of Wandsworth [1987] 38 BLR 106 11,39,40
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Haney v United States” (1982) 30 Ct. Cl. 148, 676 F.2d 584 61
Havant Borough Council v South Coast Shipping Company Ltd (1998) 14 CLJ 420 23
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 Con LR 32
18,27,31,39-41,45,56,57
Holland Dredging (UK) Ltd v Dredging and Construction Co Ltd (1987) 37 BLR 1 23
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John Barker Construction Ltd v London Portman Hotel Ltd [1996] 83 BLR 31 12,56
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Mirant Asia-Pacific Construction(Hong Kong) Ltd v.Ove Arup &Partners International Ltd
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81
Montgomery-Macri Company and Western Line Construction Co (1963) IBCA Nos. 59, 72,
1963 BCA K 3819 a 60
Motherwell Bridge Construction v Micafil Vakuumtechnik (2002) CILL 191 31
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Ng Koon Yee Mickey v Mah Sau Cheong [2022] SGHC(A) 33 4
Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd [2017] NIQB 43 25
North Midland Construction Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744 39,52,57
Peak Construction (Liverpool) Ltd v McKinney Foundation Ltd (1970) 1 BLR 111 5,24
Percy Bilton Ltd v Greater London Council [1982] 1 WLR 794 5,24
Pigott Foundations Ltd v Shepherd Construction Ltd (1993) 67 BLR 48 23
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Roberts v The Bury Improvement Commissioner [1870] LR 5 C P 310 24
Royal Brompton Hospital National Health Service Trust v Hammond & Others [2002]
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Santa Fe Inc (1984) 4-2 BCA 11 17,341 18,62
Skanska Construction UK Ltd (formerly Kvaerner Construction Ltd) v Egger (Barony) Ltd
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Steria Ltd v Sigma Wireless Communications Ltd [2008] BLR 79 TCC 41
Titan Pacific Construction Corp ASBCA Nos. 24,148, et al., 87-1 BCA ¶ 19,626, aff’d 17 Cl. Ct.
630 (Cl. Ct. 1989) 62
Thomas Barnes & Sons PLC (IN ADMINISTRATION) v Blackburn with Darwen Borough
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Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 2 AII ER
260 5,24
Utley-James, Inc. v. United States (1988) 14 Cl. Ct. 804 62
Walter Lilly & Company Ltd v (1) Giles Patrick Cyril Mackay (2) DMW Developments Ltd
[2012] EWHC 1773 (TCC) 25,36
Wells v Army and Navy Co-op Society (1902) 86 LT 764 4
Yap Boon Keng Sonny v v Pacific Prince International Pte Ltd [2009] 1 SLR(R) 0385 23
Yorkshire Water Authority v Sir Alfred McAlpine & Son (Northern) Ltd (1986) 32 BLR 114
23
82

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A History of Extension of Time December 2022

Robert Tustin MRICS MSc FCIArb

From a U.K. perspective

Part 3: Critical Path Analysis 14

Part 11: Appendices 59

PART 2: THE U.K. APPROACH TAKEN UP TO 1999

This is the ‘prevention principle’ in the construction industry, or more generally in

2.2 THE 19th CENTURY CONSTRUCTION INDUSTRY, FIXED COMPLETION

2.3 MEASURING EXTENSION OF TIME IN THE 20th CENTURY

In a 1992 publication edited by the highly respected Mr John Uff19, a Mr Richard

2.4 DEVELOPMENTS DURING THE 1990s

The case of Balfour Beatty Construction Ltd v Chestermount Properties (1993)21,

“The underlying objective is to arrive at the aggregate period of time

Similarly, there seems to have been no reference in the Chestermount case, to a

H Fairweather v London Borough of Wandsworth (1987)24 case was about which of

In 1997 Eggleston wrote, “The analysis of causation…remains relentlessly attractive

PART 3: CRITICAL PATH ANALYSIS

3.1 A LOGICAL ALTERNATIVE TO THE CONVENTIONAL APPROACH

There are at least two problems with that approach:

a result of the other party’s non-performance32. In English law the principle

3.3 UNDERSTOOD MEANING OF CRITICAL PATH IN THE 20th CENTURY

The following explanation is provided:

3.4 THE CASE LAW AND OTHER DEVELOPMENTS

Royal Brompton (2000)

The Society of Construction Law (2001)

The Society of Construction Law (2002)

Skanska v Egger (2002)

Various judgements 2003-2010

As explained in The Wrong Path, NEC 3 is premised on the assessment of

In Adyard Abu Dhabi v SD Marine Services (2011)48 (“Adyard)”, Justice Hamblen

Interestingly (although curiously the case involved a shipping contract), Justice

Adyard), “It is wrong in principle…It is wrong as a matter of authority because it is

Thomas Barnes (2022)

PART 4: PARALLEL DELAYS AND THEORETICAL DELAYS

Some commentators have attributed to Justice Seymour’s words a meaning that

1. When referring to Justice Dyson’s decision, Justice Seymour makes no

3. Justice Seymour states that there IS entitlement in connection with competing

It seems perfectly understandable to conclude that such a situation is not a

The Society of Construction Law consultation document (2001)

Motherwell Bridge (2002)

This seems to be essentially the same finding as Justice Colman. There’s no

London Borough of Lambeth (2002)

Society of Construction Law Protocol (2002)

JCT 05 Building Contract (2005)

• In the clause titled, “Notice by Contractor of delay to progress” (now clause

De Beers v Atos Origin (2010)

The pre-Malmaison position was re-iterated in De Beers UK Ltd (formerly Diamond

City Inn (2010)

“…the delay caused by the contractor…is irrelevant so far as the contractual

In of Adyard Abu Dhabi v SD Marine Services (2011), Justice Hamblen made

• (para 277) “A useful working definition of concurrent delay in this context is ‘a

As discussed in Part 7 below, these observations have been cited by commentators

What did Justice Hamblen mean here?

Walter Lilly (2012)

North Midland Building (2018)

In 2019, the Society of Construction Law published a paper by their President

Further analysis is included in Part 5 of The Wrong Path.

PART 5: THE DOMINANT CAUSE AND/OR APPORTIONMENT