In assessing the previous authorities on the issue, Akenhead J stated in Walter Lilly: It is common to see in most final account disputes involving claims for prolongation and thickening a “global” or “total cost” claim defence advanced by the employer.
SD Marine Services EWHC 848 have confirmed that the Henry Boot principle is good law and should be preferred.Īkenhead J has in Walter Lilly conclusively ended the debate by stating that “… the City Inn case is inapplicable within this jurisdiction”. ATOS Origin IT Services UK Ltd BLR 274 and Adyard Abu Dhabi v. There was a suggestion from his words that he was simply repeating a principle that the parties themselves had agreed upon rather than reaching a considered decision on the point. The subsequent debate has been fuelled by the manner in which Dyson J (as he then was) set out this principle in Henry Boot.
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There the court decided that the contractor is entitled to a full extension of time for the delay caused by two or more events provided one is a relevant event that would entitle the contractor to such an extension. Malmaison Hotel (Manchester) Ltd (1999) 70 Con LR 32. The English school is set out in the court’s decision in Henry Boot Construction (UK) Ltd v.
The English school of thought is the one that is most often cited by contractors and is, in experience, the one preferred by both the courts and adjudicators. This Scottish school of thought has been leapt upon by employers and contract administrators as a means of denying contractors extensions of time in periods of concurrent delay. There the court decided that, in periods of concurrent delay, the contractor shall only be entitled to an extension of time for the reasonably apportioned period of the concurrent delay. The first is the application of the apportionment approach, first set out by the Inner House in City Inn Ltd v. In Walter Lilly, Akenhead J described these as the English and Scottish schools.
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The debate over how to treat such delays has largely been distilled into two schools of thought.
The usual example used to illustrate concurrent delay is where the employer has instructed a variation, but the contractor has no labour to carry out that work. Although there is always dispute over whether the evidence demonstrates that a delay was truly concurrent, a concurrent delay can best be described as two competing causes of critical delay – one for which the employer is responsible and one for which the contractor is responsible. Over recent years, there has been considerable debate in the industry as to how the issue of concurrent delay should be dealt with. In deciding what was a routine dispute between the parties over claims by the contractor for further payment and extensions of time and by the employer for defects and snagging, the TCC laid down important guidance in relation to concurrent delay, global claims and the use of formulae in overhead recovery claims. (1) MacKay and (2) DMW Developments Ltd EWHC 1773 may prove to be the most significant decision to come out of the TCC (Technology and Construction Court) in recent years. The judgment in Walter Lilly & Company Ltd v.
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