The purpose of this paper is to discuss, once again, the correct approach to contractors’ claims arising out of concurrent delay in the execution of construction projects. In 2002 and 2003 the writer presented papers on the same subject to the Society of Construction Law in London and the Society of Construction Law - Hong Kong, respectively.
At that time, it was suggested that the approach to concurrent delay which had then recently been recognised in the Malmaison case would ordinarily be appropriate. Since then, a substantial body of opinion has emerged which supports that approach . However, two cases in Scotland have suggested that the approach of apportioning delays would be preferable; and there have been suggestions that the same approach should be adopted by the Courts of Hong Kong and in Australia . Since the issues arising have yet to be considered by the highest court in any one of these jurisdictions, there is, accordingly, room for discussion.
This paper is concerned with remedies afforded to parties to construction contracts by the contractual provisions upon which they have agreed. Accordingly, whilst it is common for contractors to combine claims brought under such contracts with claims for damages for breach of contract, the focus of this paper is on the former, rather than the latter