Concurrent Delay: A Tip of the Hat to Malmaison

Ser Kim Koi v GTMS Construction Pte Ltd [2022] SGHC (A) 34 (“Ser Kim Koi”)
Concurrent Delay: A Tip of the Hat to Malmaison
​

​Introduction
 
This is one of the judgments in a prolonged dispute between the owner, his architect and main contractor in a project for the construction of three good class bungalows at Leedon Park. 
 
The disputes culminated in a lengthy sixty day trial where the contractor and the architect claimed against the owner for unpaid work.  
 
The owner counterclaimed against the contractor and the architect alleging that they had entered into an unlawful means conspiracy against him by, amongst others, improperly granting extensions of time, certifying as satisfactory deficient works that were not rectified, and certifying the project as being complete when it was not safe for occupation.
 
The owner lost the case at the High Court and lodged an appeal to the Court of Appeal.
 
The judgment of the Court of Appeal (CA) is the subject of this blogpost. The CA judgment is voluminous – 254 pages – and covers a broad spectrum of issues.
 
For this blogpost, our focus lies on the CA’s remarks on concurrent delay. 

​Concurrent Delay

​The UK Society of Construction Law’s Delay and Disruption protocol (“Protocol”) describes concurrent delay as : ”… 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).”
In simpler terms, concurrent delay occurs when there is a delay to the progress caused by an owner generated event and a contractor generated event. For example, when the owner issues and instruction for additional work in the period when the contractor is in delay.  The issue is  - should the contractor be entitled to an extension of time (“EOT”) when there is concurrent delay.
 
There are generally three approaches in dealing with concurrent delays:
 
a) The "Dominant Cause" approach: The contractor will be entitled to EOT for concurrent delay if the employer's delay event  is the "dominant cause".
 
b) The "Apportionment" approach: The responsibility for concurrent delay is apportioned between the contractor and the employer based on what is fair and reasonable.
 
c) The "Malmaison" approach:  The contractor is entitled to EOT for the whole period of delay caused by the employer delaying event regardless of any concurrent cause  This approach is based on the UK decision of Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd and is also reflected in the Protocol
 
The position in Singapore is still uncertain.
 
In ICOP Construction (SG) Pte Ltd v Tiong Seng Civil Engineering Pte Ltd [2022] SGHC 257 (“ICOP”), a High Court judgment that was also published in 2022, Lee Seiu Kin J seems to adopt the “Dominant Cause” approach. This can be seen from His Honour’s remark that “In cases involving two potential causes of a delay, the usual approach is to ask which of the causes was the “but for” cause. This is trite law.” However, no legal authorities were cited in support of this position.
 
On the other hand, in Ser Kim Koi, the CA voiced support for the Malmaison approach.  Agreeing with the general principles set out in Keatings at para 8-026, the CA opined that “… a contractor is entitled to an extension of time where delay is caused by matters falling within the [EOT] clause notwithstanding the matter relied upon by the contractor is not the dominant cause of delay, provided only that it has at least equal “causative potency” with all other matters causing delay”.
 
Concurrent delay arose in Ser Kim Koi when additional works which were necessitated by design issues, were instructed in the period when the contractor was in delay.  In the CA’s view, the architect should have considered the time impact of such additional works and could have issued a Delay Termination Certificate under clause 24 (3) of the Singapore Institute of Architects, Articles and Conditions of Building Contract (Lump Sum Contract) (9th Ed, September 2010) (“SIA Conditions”) if warranted.
 
The CA’s remarks on concurrent delay are however obiter as concurrent delay was not raised in the parties’ pleadings as a ground of challenge to the owner’s claim for delay damages.

​Commentary
 
Given the CA’s clear support and cognisance of the "Malmaison" approach, there is good reason to believe that this approach will eventually be accepted and endorsed by the Singapore Courts when they have to deal with the thorny issue of concurrent delay. In our humble view, this is an agreeable development, The "Malmaison" approach provides a fair allocation of delay risk and simplifies the factual analysis. It does away with the arduous task of assessing the dominant cause of delay and/or apportioning the extent of delay when faced with equally causative employer and contractor caused delay events.

We are regularly consulted on EOT and delay issues in construction contracts. If you have any questions concerning such issues, feel free to drop us an email or call us arrange a consultation. Our contact details are found here.

Tan Joo Seng
August 2023