Treatment of Concurrent Delays and the Prevention Principle in Construction Delay Claims

Delays are bound to be experienced on construction projects, and numerous taxonomies have been devised for their classification. Delay-related events that are found to be particularly caused by owners or contractors are likely to give rise to delay concurrency disputes. Another form of difficulty arises when such disputes involve the alleged triggering of the prevention principle in respect of a relevant delay event that is caused by the owner. The paper aims at tackling the treatment of concurrent delays under those conditions that lend themselves to the triggering of the prevention principle. The adopted methodology involved a review of the literature on the types of construction delays and the difficulties associated with their identification and measurement, as well as their patterns of occurrence, including delay concurrency and pacing. It further involved a review of a number of relevant case law on the subject, which allowed a set of lessons learned to be withdrawn. The methods of enquiry that were observed to have been relied upon in deriving resolutions involve the employment of the malmaison approach, the dominant approach, and/or the apportionment approach. The lessons learned are found to have revolved around several critical factors that have been identified to include: the timing at which the events took place, the sequencing with which the events occurred, the level of ambiguity of the contract clauses related to the concerned delay events, and the responsibility for carrying the burden of proving that the relevant events have indeed affected completion.