27.1. TBB 2016.696 – Parallel delays – when time is not money
27.1.1. Danish law
Parallel delays have only claimed little attention in Danish, legal literature. Thus, common presentations on construction law do not mention parallel delays which is in sharp contrast with the meaning of parallel delays in practice where construction projects become more and more complex. At the same time, it is common for the parties in a construction project to each rely on circumstances that may have been of importance to the completion of the construction.
Sylvie Cavaleri sought to deduce some general considerations regarding the rules in Danish law with respect to parallel delays based on an analysis of a number of cases. The cases did not explicitly concern parallel delays, but the cases dealt with delays with several causes. Thus, Sylvie Cavaleri deduced a number of common characteristics from the cases:
- The assessment of extensions of time is highly characterised by estimates
- Formalities such as complaints do not have a precluding effect but are rather used as rules as to burden of proof
- The wording of a contract is not decisive but only an element used to achieve a materially satisfying result
In overall terms, the three characteristics form an expression of a pragmatic approach to solving the cases making it difficult to establish one specific, theoretical approach to the way parallel delays are dealt with in Danish law. According to Sylvia Cavaleri, Danish practice thus shows that Danish construction law generally uses a pragmatic apportionment of responsibilities in case of parallel delays and that the apportionment is based on estimated calculations. However, there is not one solution model when it comes to parallel delays. Parallel delays in construction projects are widely dealt with in the same way as competing causes of damage in general law of damages which means that only little consideration is taken to the fact that a contractual relationship (most often) exists between the parties in construction projects.
27.1.2. English law
As opposed to Denmark, the way to deal with parallel delays has been highly discussed in England, and parallel delays are therefore also dealt with in various ways in English law.
However, English case law has generally shown three different solution models to parallel delays:
- Apportionment of responsibilities according to the theory of principal causes. Thus, the apportionment of responsibilities will be according to the dominating cause of the delay
- Estimated apportionment of responsibilities (generally corresponds to the above statements in the paragraph about Danish law where responsibility for parallel delays is apportioned between the two responsible parties based on estimated considerations).
- The Malmaison doctrine practising the principle of “time, no money” as the contractor is entitled to an extension of time but not financial compensation in case of a parallel delay where both the employer and the contractor are responsible for an incident that would have caused a delay
By now, major parts of English law point towards the Malmaison doctrine being the preferred solution model for parallel delays. In line with that, that is the recommended approach to parallel delays in article 1.4.1 of the British Delay and Disruption Protocol:
“Where Contractor Delay to Completion occurs concurrently with Employer Delay to Completion, the Contractor’s concurrent delay should not reduce any EOT [extension of time] due.”
Article 1.10.1. states the following about the contractor’s entitlement to financial compensation due to parallel delays:
”If the Contractor incurs additional costs that are caused both by Employer Delay and Contractor Delay, then the Contractor should only recover compensation if it is able to separate the additional costs caused by the Employer Delay from those caused by the Contractor Delay.”