| Date | 18 July 2001 |
|
|
| Judgment | The Royal Brompton Hospital NHS Trust -v-Frederick Alexander Hammond and others, TCC 18 November 2000 |
|
|
| The Issue | The manner in which concurrent delays should be approached in assessing extensions of time. |
|
|
| Implication |
It is a question of fact whether an event, whether acting alone or concurrently with other events, will cause delay to the completion of the works and give an entitlement to extension of time. |
printEstablishing whether a contractor is entitled to an extension of time inevitably causes difficulty, particularly when there are two competing causes of delay, one of which is the responsibility of the contractor. A number of cases have dealt with this problem, but none clearly gives guidance of universal application. In Balfour Beatty -v- Chestermount Properties the question was not how to deal with two competing causes of delay, but whether a contractor would be entitled to an extension of time for a delay event occurring after the date by which the contractor ought to have properly achieved completion. The court agreed that the contractor was properly entitled to an extension of time. The revised completion date was to be established by reference to the total number of working days within which the contractor ought fairly and reasonably to have completed the works. In other words, a nett period for extension would be granted, which would not let the contractor "off the hook" for delays for which it was already responsible. In the more recent case of Henry Boot Construction -v- Malmaison Hotel (Manchester) it was agreed by the parties that if there were two concurrent causes of delay, one of which was a relevant event and the other not, the contractor would be entitled to an extension of time for the period of delay caused by the relevant event, notwithstanding the concurrent effects of the other event. Unfortunately, the impact of that apparently clear concession was diluted by the guidance then given by the court. The court advised that, whilst the relevant event must be assessed and an appropriate extension granted, in making such an assessment the architect was entitled to take into account the effect of delaying events upon the completion date for which the contractor was responsible. This circular argument appears to take us back where we started in attempting to understand how to deal with concurrent delays. In December 2000, further guidance was given in the case of The Royal Brompton Hospital -v- Frederick Alexander Hammond and others. His Honour Judge Richard Seymour QC first noted that there are two conditions which need to be satisfied before an extension of time can be granted, namely (1) that the relevant event has occurred, and (2) that that relevant event is likely to cause the completion of the works as a whole to be delayed beyond the completion date then fixed under the contract. Whilst this analysis does not appear particularly exciting or novel, it did lead Judge Seymour to emphasise the importance of undertaking a careful analysis in order to assess whether a particular occurrence has affected the ultimate completion of the work, rather than just a particular operation. Judge Seymour noted that it would normally be desirable to consider what operations, at the time of the event in question, are critical to the forward progress of the work as a whole. The importance of this analysis is emphasised by the Judge's comments in respect of concurrent delay. In his view, it is necessary to distinguish the situation where the relevant event occurs during a period in which work has already been delayed, for example, because the contractor has had difficulty in obtaining sufficient labour. In such a situation, according to the judge, although there is a relevant event, the completion of the works is not likely to be delayed thereby beyond the completion date. This is in reality no different to the situation where, on Judge Seymour's analysis, there is a real concurrency of two or more causes of delay. According to the judge, this would occur for example, where works were proceeding in a regular fashion and on programme, when two things happen (one being a relevant event, the other not), either of which, had it happened on its own, would have caused delay. In truth it is no less easy in the real world to distinguish these two types of situation than it is to identify the causes of delay in the first place. In both of these situations, it is still necessary for the contractor to demonstrate that the relevant event caused actual delay to completion of the project. The existence of contractor culpable delay, whether pre-existing and ongoing, or truly concurrent, does not, of itself, extinguish the right to an extension of time. There is no magic wand to be waved over these difficult questions of analysis, and it seems the best the courts can give by way of guidance is contained in the Henry Boot case, where the Judge noted "it seems to me that it is a question of fact in any case, whether a relevant event has caused, or is likely to cause, delay to the works beyond the completion date". Many in the construction industry believe that these comments give further weight to the argument that a full critical path analysis is necessary to resolve questions over the entitlement to extension of time in situations when there are competing causes of delay. In reality however, these forms of analysis are no more than tools in forming a better understanding the sequence of operations. They are reliant on the quality of information upon which the assessment is based, and all too often, descend into levels of detail which confuse rather than clarify the true picture.
CJ-0128
|
|||
|
© Brewer Consulting |
|||
 |
|||