“the only effective cause of Delay to Completion is the Contractor Risk Event,”15 so that “[c]oncurrent delay only arises where the Employer Risk Event is shown to have caused Delay to Completion or, in other words, caused critical delay (i.e. it is on the longest path) to completion.” 16 The first question that this reasoning raises is that, if there is only one effective cause of delay, would there be any concurrency? The straightforward answer, which is actually provided by the 2016 Draft itself,17 is: no. However, this logic simply favours whichever delay comes first and takes no account of various concerns raised throughout the years such as “causative potency”18 and the prevention principle discussed in further detail below.19 Leaving the discussion about ‘effective cause’ aside, this reasoning can very easily be applied to situations both pre and post completion date. If that is indeed the case, the SCL is suggesting that concurrency can never happen if the Contractor Delay starts earlier and is longer than the Employer Delay. The Contractor would only obtain an EoT (1) when the Employer Delay ends after the end of the Contractor Delay, and (2) when the Employer Delay occurs within the Contractor Delay but adds to the already existing Contractor Delay, thereby extending the date of completion beyond the project overrun caused by the Contractor. However, neither of these describe a situation of concurrent delay anyway because the Employer Delay would be extra. It may be that the SCL’s new proposed recommendation is intended to assess whether it is fair and reasonable to grant an EoT to a Contractor for a post completion Employer Delay that could have been avoided had the Contractor finished on time. A useful example that helps illustrate this assessment is inclement weather (i.e., “exceptionally adverse climatic conditions” in FIDIC nomenclature) where the cause of delay is neutral. As a matter of FIDIC standard form interpretation, the Contractor would be due an EoT for this event under Sub-clause 8.4. In obiter dictum, Colman J asked in Balfour Beatty v Chestermount20 this same question, whether it would be fair and reasonable to grant an EoT for a relevant event that would have been “wholly avoided had the contractor completed the works” on time. Coleman J uses the example of a storm
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