It has become a general practice that in all construction projects, delays in execution invariably arise, which on account of the owner, or on account of contractor, or on account of both. Ascertainment of attributability of delay to either owner or contractor or to both has been the most contended issues in all construction disputes with the very core of the adjudication of the dispute being such ascertainment of attributability of the delays to each party.
The problem, though seems simple at first, raises severe challenges in the adjudication process, more so when the construction project imbues within itself hyper technical aspects, including parallel execution at the same point of time at various work sites, etc., including critical and non-critical work paths, etc.
It shall not be out of place to mention that the assistance of experts and most advanced delay analysis such as As-Planned -vs- As-Built, Time Impact Analysis, Critical Path Analysis, etc. have to a large extent come helped adjudicators. But such delay analysis on account of their own pros and cons, coupled with the reliability of the experts has consistently been a question of great contention in the adjudication process, more so when the delay is attributable to both owner and contractor. This is known as concurrent delay, and it is the most common form of delay in the construction industry.
This article attempts to understanding such concurrent delay.
In simple terms, concurrent delay occurs when both parties are at fault for the delay and, as such, no single party can be held responsible for the delay. The term concurrent delay has not been defined in the Indian Contract Act, 1872. However, the Society of Construction Law Delay and Protocol (2nd Edition, February, 2017), at Clause 10, defines concurrent delay as,
“True concurrent delay is the occurrence of two or more delay events at the same time, one an Employer Risk Event, the other a Contractor Risk Event, and the effects of which are felt at the same time. For concurrent delay to exist, each of the Employer Risk Event and the Contractor Risk Event must be an effective cause of Delay to Completion (i.e. the delays must both affect the critical path). Where Contractor Delay to Completion occurs or has an effect concurrently with Employer Delay to Completion, the Contractor’s concurrent delay should not reduce any EOT due.”
For example, a concurrent delay arises in a case there is a delay of 30 days from owner’s end in handing over the work front, while at the same time, the contractor also mobilizes its machinery and equipment with a delay of 30 days from the agreed start date, resulting in starting the work only on the 31st day in both scenarios. This delay of 30 days, which arises on account of both the owner's and contractor's conduct, is a case of concurrent delay. Thus, when delay arises from both sides, and such delay is critical enough to independently derail the pace of the project, such scenarios qualify for a case of concurrent delay.
1. Prohibition principle (also called prevention principle): The principle was cemented by the English case of Peak Construction -vs- Mckinney Foundations [(1976) 1 BLR 111], establishing that in cases of concurrent delay, the contractor will be entitled to extension of time, even though he might be undergoing delays, while the owner on the other hand, who was also undergoing delays at the same time, cannot impose liquidated damages. However, an exception to this rule can be contractually created through clauses that impose the responsibility of the concurrent delay on the contractor.
2. 'But-for' test: The test rests on the simple question: whether, if not for the delay by the owner, would the contract have been completed within the agreed time? To put it by way of an example, two unrelated concurrent delays, one being the non-issuance of free issue material by the owner, while other being non-finalization of an engineering agency by the contractor, warrants application of the ‘but-for’ test. However, the test suffers from in-built infirmity and is seldom relied upon in adjudication process.
3. Dominant cause approach: Under this approach, when a concurrent delay occurs involving an owner risk event and a contractor risk event, and only one of the delays is the dominant cause for the delay in the project, the dominant delay prevails over the other cause of delay. This assigns liability based on the dominant or more influential or prevailing cause of delay. However, the shortfall of this approach is that the effect of the delay of each such event is not analysed and segregated, leading to unfairness.
4. Malmaison approach: The approach named after the originating English case being Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [1999) 70 Con. L.R. 32 QBD (TCC)] is based on the premise of ‘time but no money.' For example, when there is a concurrent delay by owner, such as variation/ change in scope, and also delay by the contractor, such as slow progress by him, the contractor cannot claim compensation. The Malmaison approach has been widely upheld and is the most common approach in adjudication relating to the concurrent delay. The English High Court in Saga Cruises v. Fincantieri, [(2016) EWHC 1875 (Comm.)], held, “a contractor should not be entitled to the benefit of an employer’s delay event if it was already in delay and the employer’s event had no actual impact on the completion date."
5. Other Approaches: In UAE, Hongkong and Scotland, the approach laid down in City Inn v. Shepherd Construction Ltd., [(2010) CSIH 68], referred to as the apportionment approach, is generally followed. This follows the principle that delay is apportioned between the owner and the contractor where two competing causes of delay exist, neither of which is dominant, based on the relativity of each of the factors in causing delays. The said approach declines the applicability of the English Malmaison approach.
Another approach known as the First-in line approach in Royal Brompton Hospital (2000) and Saga Cruises BDF (2016) held that the delay caused by th owner is considered as sequential and not an example of concurrent delay, as the owner’s delay did not cause any additional delay to the completion.
The Extension of time but no recovery approach as enumerated in De Beers UK Ltd. v. Atos Origin IT Services UK Ltd held that the general rule in construction and engineering cases is that where there is a concurrent delay to completion, the contractor is entitled to an extension of time, but he cannot recover in respect of the loss caused by the delay. The dot-on principle states that the duration of the extension of time is added to the existing completion date and not to the date of the event.
The Indian Courts gone into apportionment of delays many times, but dealing with the different aspects of ascertainment of the concurrent delay, while, discussing various aspects/ test, has been seen only in some of the cases. In one such matter, the High Court of Madras in Secretary to Govt. -vs- SPL Infrastructure Private Limited [2019 SCC OnLine Mad 8603], speaking through Justice Senthilkumar Ramamoorthy, considered the ‘Malmaison approach’ and held,
“The learned AGP referred to the Abyard case and the Malmaison case. In those cases, the construction was delayed by more than one event that occurred concurrently. The Malmaison principle is that the contractor would be entitled to extension of time even if only one of two concurrent events is attributable to the employer. However, in this case, as stated above, the events in question are sequential and not concurrent. Moreover, each of the events is on the critical path. Therefore, the contention of the learned SGP that the Arbitral Tribunal should not have undertaken apportionment is rejected.”
Recently, on February 24, 2026, the Bombay High Court in Mumbai Metropolitan Region Development Authority v. Mumbai Metro One (P) Ltd., [2026 SCC OnLine Bom 1479], while dealing with the appeal against an arbitration award, dealt with the ‘extension of time and no recovery approach’, while distinguishing the De Beers (supra) judgment in the facts of the matter.
It is time that further clarity is given to the complex iissues arising from concurrent delays.
Without any iota of doubt, it can be safely said that the Indian Courts have marvellously dealt with the concepts of delays. However, it is of utmost necessity that principles governing the deciding factor for establishing concurrent delay and their consequences are laid down by the Courts, keeping in mind the Indian scenario.
About the author: Abinash Agarwal is an Associate Partner at MCO Legals (Meharia & Company).
Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.
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