Concurrent delay, over-determination and the problem of default rules (2016) Const. LJ

In his paper for May’s edition of the Construction Law Journal Mischa Balen discusses the conceptual difficulties caused by concurrent delay and causation in construction claims. The paper examines the various suggested solutions, including the “dominant cause” test in City Inn, the “Malmaison test” in Henry Boot v Malmaison and apportionment. The paper concludes by considering the proper basis for selecting one of those solutions, suggesting that the “default rule”, which governs in the absence of a contrary indication by the parties, should be to apportion the delay between the contractor and the employer. It will be of interest to all of those who practice in construction law and in particular to those who regularly deal with delay claims.

This article was first published in May’s edition of the Construction Law Journal.

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