CAUSATION IN CONSTRUCTION LAW:

THE DEMISE OF THE

‘DOMINANT CAUSE’ TEST?

A paper presented to the Society of

Construction Law at meetings in Reading on
8th May and Glasgow on 15th May 2014

Vincent Moran QC

November 2014

190

www.scl.org.uk
 CAUSATION IN CONSTRUCTION LAW:
THE DEMISE OF THE
‘DOMINANT CAUSE’ TEST?

Vincent Moran QC

Introduction
1. In the seemingly eternal debate over which test of causation to apply in
claims under building contracts based on concurrent causes of delay or
loss and expense, we seem to have reached something of a hiatus.

2. A consensus has developed, derived from recent authority, updated

editions of practitioner works and academic articles:
(a) The expression ‘concurrent delay’ denotes a period of project
overrun which is caused by two or more effective causes of delay
which are of approximately equal causative potency.1
(b) A contractor is entitled to an extension of time (at least under the
JCT forms2) notwithstanding that the matter relied upon is not the
dominant cause of delay, as long as it has at least ‘equal causative
potency’ with all other matters causing delay.3
(c) However, if one of the competing causes can be identified as the
dominant cause, it alone is taken to be legally effective, applying
the ‘dominant cause’ test.4
(d) In contrast, a contractor is not entitled to any related money claim
for loss and expense unless it can satisfy the more stringent ‘but
for’ test of causation by showing that, absent the employer risk

1 John Marrin QC, ‘Concurrent Delay’, SCL Paper (February 2002), page 3,
<www.scl.org.uk> and (2002) 18 Const LJ 436; approved by Hamblen J in Adyard Abu
Dhabi v SD Marine Services [2011] EWHC 848 (Comm), [2011] BLR 384, 136 Con LR
190, para [277]; and adopted in Keating, note 3, para 8-025.
2 Forms of building contract published by The Joint Contracts Tribunal Ltd:
<www.jctltd.co.uk>.
3 Stephen Furst QC and The Hon Sir Vivian Ramsey, Keating on Construction Contracts
(9th ed, Sweet & Maxwell, London 2013), para 8-026; Henry Boot Construction (UK)
Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 Con LR 32 (TCC); Steria Ltd v
Sigma Wireless Communications Ltd [2008] EWHC 3454 (TCC), 118 Con LR 177,
[2008] BLR 79, paras [131]-[132]; Royal Brompton Hospital NHS Trust v Hammond (No
7) [2001] EWCA Civ 206, 76 Con LR 148; De Beers UK Ltd v Atos Origin IT Services
UK Ltd [2010] EWHC 3276 (TCC), [2011] BLR 274, 134 Con LR 151, para [177];
Walter Lilly & Co Ltd v Mackay & DMW Ltd [2012] EWHC 1773 (TCC), [2012] BLR
503, paras [362]-[370]; Greenwich Millennium Village Ltd v Essex Services Group Plc
[2013] EWHC 3059 (TCC); and the SCL Delay and Disruption Protocol (2002),
<www.eotprotocol.com>.
4 Marrin, note 1, page 2; Lord Osborne’s summary of the position in English law in City
Inn Ltd v Shepherd Construction Ltd [2010] CSIH 68, [2010] BLR 473, para [42]; and
the BLR editors’ agreement with the latter, [2010] BLR 475-476.

1
 event relied upon, the postulated loss or expense would not have
been incurred.5

3. However, this summary masks a number of remaining questions. What,

if any, continuing relevance should the ‘dominant cause’ test have for
considering time and money claims under construction contracts where
there are concurrent causes? Is the apparent requirement for a true
concurrent cause to be of ‘approximately equal causative potency’
comprehensible or still relevant? Should there simply be an ‘effective
cause’ test in concurrency situations, at least in extension of time
claims? If so, what is an effective cause for these purposes and can it be
something less than a cause of approximately equal causative potency
with some other relevant cause?

Causation in claims for damages for breach of contract

4. The position at common law is relevant to this discussion because (i) it
has been suggested in the past as a specific reason for importing the
‘dominant cause’ test into claims under construction contracts; (ii) the
approach to causation in the law of contract may potentially inform what
the parties can be taken to have intended as the applicable causation test
under building contracts; and (iii) it focuses attention on the importance
of first construing the purpose/scope of the rule of law imposing liability
as part of the causation analysis.

5. At the outset, it should be kept in mind that causation is a mixed issue of

fact and law. As Lord Hoffmann put it:
‘One decides, as a matter of law, what causal connection the law
requires and one then decides, as a question of fact, whether the
claimant has satisfied the requirements of the law. There is, in my
opinion, nothing more to be said.’6

6. Lord Hoffmann has also emphasised the importance of focusing upon

the purpose of the rule of law that imposes liability as central to this
process – which in the context of construction claims means a purposive
construction of the relevant contractual provision under consideration:
‘... the reason why courts get the wrong answer on questions of
causation is not usually because they have misunderstood the facts
or lack common sense but because they have got the law wrong.
They have misconstrued the proper scope of the rule which
imposes liability, the rule which provides the context in which the
question of causation is being asked ...’.7

5 Keating, note 3, para 9-062; Atkin Chambers, Hudson’s Building and Engineering
Contracts (London, Sweet & Maxwell, 12th ed 2013), para 6-059; De Beers, note 3, at
para [178].
6 Lord Hoffmann, ‘Causation’ (2005) 121 LQR 592, page 603.
7 Lord Hoffmann, ‘Common Sense and Causing Loss’ (Unpublished lecture to the
Chancery Bar Association, 15 June 1999). See also Lord Hoffmann in Empress Car Co
(Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22 (HL), pages 29-34.

2
7. In addition to this starting point, some further general causation
principles can be identified.

8. Thus, in order to establish ‘causation in fact’ it is still normally a

necessary (but not sufficient) requirement in the law of contract that the
‘but for’ test can be satisfied on the facts of any particular case.8 Also,
the law of causation usually operates in an all or nothing way, save
where a statutory basis for apportionment on the basis of respective fault
applies.9 And finally, although reference is often made to causation in
law being based upon or simply reflecting the application of ‘common
sense’,10 such an approach is often considered too imprecise and
therefore may be misleading.

9. The existence of a ‘dominant cause’ test of universal application in

claims for damages for breach of contract is not supported by authority
and, it is suggested, there is no reason to assume that it should be of
general application.11 Historically, the dominant or proximate cause
approach has been limited to resolving proximate cause issues in
insurance cases,12 but even here its application may be open to debate
(see the discussion of the recent decision of the Supreme Court in the
Petroleo Brasileiro case below).13

10. Although it has been argued that there is an analogy between the
problem of concurrent causes as it arises under insurance contracts and
concurrency situations in construction contracts, it is suggested that the
basis for the supposed analogy falls down if it is accepted that the
relevant provision in a construction contract does not require a choice to
be made between competing causes of the same delay/loss in order for
an entitlement to relief to arise.14

11. The seminal decision in Galoo v Bright Grahame Murray is sometimes

relied upon as authority for the proposition that, to be legally relevant, a
cause must be the dominant and effective cause of the postulated loss.15

8 See Orient-Express Hotels Ltd v Assicurazioni Generale SpA (UK) [2010] EWHC 1186
(Comm) for recent confirmation of the general application of the ‘but for’ test in
establishing causation, save in (unidentified) unusual cases; Greenwich Millennium
Village, note 3, is an example of where it is appropriate to disapply the ‘but for’ test.
9 Law Commission, Contributory Negligence as a Defence in Contract (Working Paper
No 114, 1990), para 4.24: <www.bailii.org>.
10 See eg Lord Wright in Yorkshire Dale Steamship Co v Minister of War Transport [1942]
AC 691 (HL), page 706; Lord Reid in Stapley v Gypsum Mines Ltd [1953] AC 663 (HL),
page 681; and Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360, [1995] 1 All
ER 16 (CA).
11 Reference could be made to the dicta of Croom-Johnson LJ in Tennant Radiant Heat Ltd
v Warrington Development Corporation (1988) 4 Const LJ 321 (CA), page 324 – but
note that the court decided the case on the basis of an unusual ‘contractual
apportionment’ between the claimant and defendant – and in any event this is now
considered to be a decision limited to its own facts: see the main text linked to note 30.
12 See Keating, note 3, para 9-070 and the cases referred to at its footnote 295.
13 Petroleo Brasileiro: note 77 and its linked main text.
14 Which, as explained below, is the contractual reasoning underlying the application of the
Malmaison approach to concurrency situations.
15 Galoo: note 10.

3
 But in truth this case did not concern a consideration of two accepted
effective causes of loss in the way that the issue of concurrency arises in
building claims.

12. In fact, in Galoo the Court of Appeal decided that there was only one
effective cause of the claimants’ loss, namely the company’s decision to
continue trading when insolvent. For that reason, the alleged negligence
of the defendant auditors in failing to disclose to the claimant investors
the true financial position of the company was not an effective cause at
all. This was merely the ‘occasion’ for the loss.

13. Therefore, to be considered legally effective in the law of contract a

cause need only be an effective or dominant cause of loss16 and where
there are two causes of loss it is not necessary to choose which is the
dominant or more effective.17 What exactly amounts to an ‘effective’
cause in this sense is, however, less clear in the authorities; although it
has been held that effective can mean something less than ‘of equal
causative potency’ with another cause,18 or at least there is no clear
authority to suggest that it cannot.19

14. On another view, each concurrent cause need be of ‘approximately equal

efficacy’ for this principle to apply.20 In Heskell v Continental Express
the Court of Appeal described the contributing causes having to be of
equal efficacy21 as well as each having each to be capable of satisfying
the ‘but for’ test – although in this case contributory concurrent causes,
rather than independent concurrent causes,22 appear to have been under
consideration.23

16 Glidewell LJ in Galoo, note 10, [1994] 1 WLR 1374-1375.

17 HG Beale (General Editor), Chitty on Contracts (London, Sweet & Maxwell, 31st ed
2012), para 26-067; Heskell v Continental Express Ltd [1950] 1 All ER 1033 (KB);
Banque Keyser Ullmann SA v Skandia (UK) Insurance Co [1990] QB 665 (QB and CA).
18 Beldam LJ in County Ltd v Girozentrale Securities [1996] 3 All ER 834 (CA), page
849b-d.
19 Heskell, note 17; Banque Keyser Ullmann v Skandia, note 17, page 717H (first instance)
and pages 813E and 814C (CA); Coulson J in J Murphy & Sons Ltd v Johnston Precast
Ltd [2008] EWHC 3024 (TCC), paras [179]-[184].
20 J Murphy v Johnston Precast: note 19.
21 Devlin J in Heskell, note 17, page 1048A-B: ‘It may be that the term ‘a cause’ is,
whether in tort or contract, not rightly used as a term of legal significance unless it
denotes a cause of equal efficacy with one or more other causes. Whatever the true rule
of causation may be, I am satisfied that if a breach of contract is one of two causes, both
cooperating and both of equal efficacy, as I find in this case, it is sufficient to carry
judgment for damages’. This approach was approved in Banque Keyser Ullmann: note
17.
22 For the distinction between contributory, independent and alternative concurrent causes
see HLA Hart & Tony Honoré, Causation in the Law (Oxford, Clarendon Press, 2nd ed
1985), ch VIII.
23 Thus, in Heskell, note 17, Devlin J appears to define an ‘effective cause’ as one that
would by itself have prevented loss occurring if it had not occurred ‘... the two were
equally operative causes in that if either had ceased the damage would have ceased’
(page 1047B) and in Banque Keyser Ullmann, note 17, the breach of duty relating to the
contributory cause under consideration ‘would have prevented the loss’ if it had not
occurred (page 814H).

4
15. However, the Court of Appeal’s decision in Girozentrale supports the
proposition that the court does not in these situations have to choose
between which is the more effective cause and that even the less
significant of two contributory causes may be considered an effective
cause of loss as a matter of law24 – although it should be noted that the
two causes under consideration in Girozentrale were each insufficient to
cause the loss by themselves and in fact they were contributory
concurrent causes which had to act in combination to have causal
significance.25

16. Further, Girozentrale might also be considered as not really concerned

with deciding between competing causes in the way this issue arises in
construction claims (ie where one cause is the contractual responsibility
of the claimant and the other of the defendant) or even deciding the
degree of ‘effectiveness’ required for a cause to be recognised as legally
relevant; but rather a case where the intervening act of the claimant was
held not to break the chain of causation because it was itself a
consequence of the defendant’s prior breach of contract.26

17. Where the claimant and defendant are responsible for the competing
effective causes of loss, the ‘dominant cause’ test does not appear to be
relevant at all; and in such cases apportionment of liability on the basis
of causation is not generally possible, absent the availability of
contributory negligence as a defence.27

18. In Tennant Radiant Heat v Warrington Development Corporation, the

Court of Appeal apportioned liability between a claimant and defendant
for damage caused by the collapse of a warehouse roof on causation
grounds in the context of a landlord and tenant dispute; but this was a
situation where the contemporaneous causes each flowed from breach of
a legal duty.28 In Lamb v J Jarvis & Sons a similar approach to
apportionment on causation grounds was adopted in the context of
leaking pipes said to be the joint responsibility of the claimant
subcontractor and defendant main contractor.29 It was held that there
was no rule of law preventing apportionment in such circumstances.

19. However, in Hi-Lite Electrical v Wolseley the decision in Tennant was

considered to be one limited to its own facts and distinguishable.30
Ramsey J held that the apparent application and extension of the
Tennant decision in Lamb was not justified and that, absent a right of
contribution under the Law Reform (Contributory Negligence) Act

24 Beldam LJ in Girozentrale: note 18.

25 Hobhouse LJ in Girozentrale, note 18, page 856j.
26 Hobhouse LJ in Girozentrale, note 18, pages 856j to 859b.
27 Hi-Lite Electrical Ltd v Wolseley UK Ltd [2011] EWHC 2153 (TCC), [2010] BLR 225.
28 Croom-Johnson LJ in Tennant v Warrington, note 11, page 325: ‘… where one is dealing
with two contemporaneous causes, each springing from the breach of a legal duty but
operating in unequal proportions, the solution should be to assess the recoverable
damages for both on the basis of causation’. [emphasis added]
29 W Lamb Ltd v J Jarvis & Sons Plc (1998) 60 Con LR 1 (OR).
30 Hi-Lite Electrical: note 27.

5
 1945,31 there is no general ability to apportion damages between parties
– and that to the extent that City Inn decided otherwise it did not
represent the current position in English law.32

The test for causation in claims for damages in negligence

20. In the tort of negligence, the position is more settled and straightforward.
If there are two or more causes of a loss, one of which is a defendant’s
responsibility and the other not the claimant’s, the claimant is entitled to
recover damages in full against the defendant as long as that cause
materially contributed to the loss.33

21. The ‘but for’ test is applied less strictly in negligence and is subject to
more exceptions than in the context of liability in contract.34 It is often
considered too restrictive and is departed from in unusual tort cases.35 In
certain circumstances a ‘contributory cause’ does not have to be capable
in itself of causing the whole injury complained of, so long as it
‘materially contributed’ to the risk of it occurring.36 But this is not a
general rule: it represents one of the exceptions to the normal
requirement to satisfy the ‘but for’ test37 and is limited to cases where
there is only one possible cause or agent of loss.38

22. Of course, if one of the causes of the loss is the claimant’s responsibility,
then the claim will fall to be reduced to reflect any contributory
negligence. Thus, the need to consider apportionment of responsibility
on causation grounds does not arise.

The causation problem in claims under construction contracts

23. The starting point for the consideration of the required test of causation
in any extension of time or loss and expense claim should be the
construction of the relevant express terms of the building contract. The
correct test of causation to apply in time and money claims under
construction contracts is therefore a question of law and requires a
consideration of the ‘purpose of the rule of law’ that imposes liability –

31 See the statement of principle by Beldam LJ in Barclays Bank Plc v Fairclough Building
Ltd [1995] QB 214 (CA), page 230.
32 City Inn v Shepherd: note 4.
33 IBA v EMI and others [1980] 14 BLR 1 (HL).
34 Thus, (i) a contributory cause need not be capable of causing injury by itself (see
McGhee v National Coal Board [1973] 1 WLR 1 (HL), page 53); and (ii) the law of tort
has developed its own risk-based analysis to causation in certain categories of personal
injuries claim (see Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003]
1 AC 32).
35 Lord Nicholls in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002]
UKHL 19, [2002] 2 AC 883, paras [73-74].
36 McGhee, note 34, and IBA v EMI and others, note 33. It is not clear that the IBA v EMI
case is even really authority for this proposition in a non-personal injury situation.
37 Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134 probably extended this further in
the context of medical negligence cases – but this authority is not thought to be of
general application: see Harvey McGregor QC, McGregor on Damages (London, Sweet
& Maxwell, 19th ed 2014), para 8-026.
38 See McGregor on Damages, note 37, para 8-020.

6
 which in this context means a purposive construction of the relevant
contractual provision.39

24. As to identifying the correct legal test, no necessary or automatic

relevance of common law concepts of causation should be assumed to
apply; in any event, as summarised above, the precise nature of the
common law test of causation in claims for breach of contract where
there are concurrent independent causes is not clear.

25. The difficulty of interpreting the presumed intention of the parties in this
context is compounded in practice by the fact that typically the words
used in the relevant clauses of standard form building contracts do not
contain a clear explanation of what the parties have agreed as the
applicable test of causation, or how the assessment should be conducted
by the contract administrator.

26. Thus, for example, clause 26.1 of the JCT98 Standard Form of Building
Contract, in respect of money claims, provides:
‘If the Contractor makes written application ... stating that he has
incurred or is likely to incur direct loss and expense ... because the
regular progress of the Works or any part thereof has been or is
likely to be materially affected by any one or more of the matters
referred to in clause 26.2 ....’40 [emphasis added]

27. And in relation to time, see clause 25.3.1 of the same form:
‘If, in the opinion of the Architect/the Contract Administrator ...
any of the events which are stated by the Contractor to be the
cause of delay is a Relevant Event and ... the completion of the
Works is likely to be delayed thereby beyond the Completion Date,
the Architect/Contract Administrator shall in writing to the
Contractor give an extension of time by fixing such later date as
the Completion Date as he then estimates to be fair and reasonable
...’41 [emphasis added]

28. Notwithstanding the opaqueness of these provisions, as a matter of legal

analysis the answer to the question ‘what test of causation applies?’ must
arise simply out of a proper construction of the words used in these
provisions – as must any legal basis for distinguishing between the test
of causation applicable under extension of time and loss and expense
provisions respectively. What is slightly odd is that there is a marked
absence in practitioner works, academic articles and even authority of
the reasoning to justify the different causation tests typically applied
under the current consensus to time and money claims.

29. It is suggested that the fact that an extension of time clause is more
obviously intended to be for the benefit of both contracting parties

39 See note 7 and its linked main text.

40 See also the similar wording in clause 4.23 of the JCT Standard Form of Contract 2005.
41 See also, for example, the similar wording in clause 2.28 of the JCT Standard Form of
Contract 2005.

7
 (compared to one for loss and expense) is potentially a matter of some
importance for a purposive construction of the causation test required to
be satisfied under both types of provision.

30. An extension of time clause is in both contracting parties’ interest, in

that it permits the contractor to get an adjustment to the completion date
for the works, simultaneously preserving the employer’s right to claim
liquidated damages. By contrast, a loss and expense provision has, at
least in one sense, a more one-sided function and benefit: creating a right
on the part of the contractor to be compensated as a consequence of
certain relevant matters under the building contract – in addition to any
parallel right to claim damages for breach of contract that may arise.

31. It is suggested that this distinction between the intended purpose of the
respective provisions provides at least some contextual justification for
both (i) the construction of a more relaxed test of causation in extension
of time clauses (applying the Malmaison approach and departing from
the traditional ‘dominant cause’ test);42 and (ii) an interpretation that
distinguishes between the relevant test for extensions of time and loss
and expense clauses (in the latter, the more stringent ‘but for’ test),
despite the similarity in the wording of the relevant clauses in the JCT
form.43

The meaning of ‘concurrent delay’

32. In situations where, on any view, there is a single effective cause of the
relevant period of critical delay which amounts to a relevant event at the
employer’s risk, establishing an entitlement to some extension of time
on the part of the contractor under the building contract should be
relatively straightforward.

33. Difficulties arise where, as is often the case in major projects, a claim is
based on a number of events or where the claim is presented either
entirely or in part on a global basis; and where there are two concurrent
independent causes of delay/loss, one the responsibility of the employer
but the other that of the contractor, the position is most difficult.

34. There are a number of points to be kept in mind when considering the
correct approach to extension of time claims and alleged concurrent
causes of delay in these circumstances.

35. First, it is always necessary to distinguish between cases involving truly

concurrent causes of loss and cases which, upon proper factual analysis,
involve sequential or separate aspects of loss attributable to the various
competing causes.44 In the latter case, it is still necessary for the

42 Malmaison: note 3.
43 See Keating, note 3, para 9-061.
44 For an American perspective on these issues, see Richard H Lowe, Evans M Barba and
Gregory B Lare, ‘A View from Across the Pond: An American Perspective on the SCL
Delay And Disruption Protocol’, SCL (UK) Paper D78 (May 2007): <www.scl.org.uk>.

8
 claimant to satisfy the orthodox ‘but for’ test of causation and to
determine which part of the claimed loss is attributable to each cause.45

36. Second, JCT and other standard form contracts do not define what, for
the purposes of the administration of the contract, concurrent delay
actually means, or how concurrent causes of delay are to be treated.

37. Third, there is no clear legal authority defining what should be

considered as the meaning of concurrency or concurrent delay in this
context.46 A suggested narrow definition of concurrency, requiring both
the timing of the events relied upon and their delaying effect to coincide,
would appear on any view to be too limited.47

38. The current consensus approach to the meaning of concurrent delay

reflects an amalgam of academic comment, practitioner articles/works
and obiter dicta in the few cases that have addressed the question: there
is only considered to be true concurrency where both events cause delay
and project overrun, the delaying effect of the two events is felt at the
same time and (crucially) the period of project overrun is caused by two
or more effective causes of delay which are of approximately equal
causative potency.48

39. It is suggested that this last proviso is probably an unnecessary and

unjustifiable restriction on the approach to causation in concurrent delay
situations.

40. In practice, the effect of the adoption of this restricted definition as part
of the consensus view is the assumption that where there are two
effective causes which are not of ‘equal causative potency’, the
‘dominant cause’ test should still be applied to decide which of the
effective causes should have contractual significance. Also, as a result
of this restricted definition of concurrency, it has come to be accepted
that ‘true concurrency’ of this kind is likely to occur only in exceptional
factual situations.49

41. John Marrin QC explained this conflation of, in effect, the ‘dominant
cause’ test and the Malmaison approach in concurrency situations as
follows in his ‘Concurrent Delay’ SCL paper from 2002:
‘… where there are two competing causes of delay, they often
differ in terms of their causative potency. Even where both
competing causes are effective causes of the delay, in the sense

45 See for example the approach taken by HHJ Seymour QC in Freemans Plc v Park Street
Properties Ltd [2002] 2 P&CR 30, paras [71-73].
46 Hamblen J in Adyard Abu Dhabi, note 1, adopted John Marrin’s definition of ‘true
concurrency’ only in obiter dicta and simply as ‘a useful working definition’.
47 See the definition of concurrency in Appendix A of the SCL Delay and Disruption
Protocol, note 3, and HHJ Seymour QC in The Royal Brompton Hospital NHS Trust v
Hammond, note 3, para [31].
48 See Marrin, ‘Concurrent Delay’, note 1.
49 See eg Marrin, ‘Concurrent Delay’, note 1; Julian Bailey, Construction Law (London,
Informa Law, 2011), vol 2, para 11.70.

9
 that each taken on its own would be regarded as the cause of the
whole delay, the two may be of unequal causative potency. It is a
common place to find that during the course of the factual enquiry,
it becomes obvious as a matter of common sense that the two
supposed causes of delay are of markedly different causative
potency. One is then regarded as effective and the other
ineffective. In other words, the minor cause is treated as if it was
not causative at all.’50

42. This seminal paper is therefore significant not just because it challenged
the application of the prevailing ‘dominant cause’ test in concurrent
delay situations; but because it expressly limited the challenge to factual
situations where the competing causes were of approximately equal
causative potency.

43. In the result, the combined effect of the decision in Malmaison and John
Marrin’s analysis has been to lead the construction law industry and
practitioner works (although not, it should be noted, any English
authority) to combine two separate tests of causation. The resulting new
hybrid test of causation involves a preliminary enquiry to see whether
the traditional ‘dominant cause’ test could apply on the facts to negate
the legal significance of one of the other competing effective causes –
and only the application of the less onerous Malmaison test if a
dominant cause cannot be identified.51

44. However, the contractual reasoning for, in effect, grafting the

Malmaison test onto the ‘dominant cause’ test in this way has never
been adequately explained. If there are two competing causes, each of
which would have caused a given delay had they occurred by
themselves, should they not always be considered ‘concurrent causes’
with sufficient causative potency to satisfy the causation requirement in
JCT-worded provisions52 – whether or not one can be described as
dominant?53

45. It may be that, on the facts of a particular case, it is nevertheless not ‘fair
and reasonable’ to grant an extension of time to an equivalent extent
(perhaps due to the timing of the relevant event during a period of
culpable contractor delay), but that should not effect the consideration of
whether the (separate) causation requirement under the applicable
contractual provision has been satisfied.

46. On analysis, it is really only necessary to retain such a restricted

definition of contractually significant causes of concurrent delay (ie as
only applying to competing causes of approximately equal efficacy) if it

50 Note 1, page 2; as quoted in John Marrin QC, ‘Concurrent Delay Revisited’, SCL (UK)
Paper 179 (February 2013), page 2: <www.scl.org.uk>.
51 Malmaison: note 3.
52 By analogy with the position in law for damages claims: see the discussion of the key
CA decisions in Heskell and Girozentrale: notes 17-18 and the linked main text.
53 In support of this approach, see Tony Dymond and Michael Mendelblat, ‘Walter Lilly –
A Case for All Seasons?’ [2013] ICLR 234.

10
 is assumed that the ‘dominant cause’ test is the starting point of the
causation analysis and to be applied as the first level of the same.

47. If, however, the ‘dominant cause’ approach is inapplicable in the first
place or cannot survive the rise of the Malmaison approach and the
contractual reasoning on which it rests, it is suggested that there is no
need for such a restrictive definition and that a more natural definition
for legally significant concurrent delay in this context is simply: a period
of delay caused by two or more events, whatever their respective
efficacy.

The ‘dominant cause’ approach

48. It is worth pausing to consider the rise of the ‘dominant cause’ test
which prevailed during the 1980s and 1990s in the world of construction
claims. It originated, however, not in authority but as a result of its
inclusion in the leading practitioner work in this field, summarised as
follows:
‘If there are two causes, one the contractual responsibility of the
Defendant and the other the contractual responsibility of the
Plaintiff, the Plaintiff succeeds if he establishes that the cause for
which the Defendant is responsible is the effective, dominant
cause. Which cause is dominant is a question of fact, which is not
solved by the mere point of order in time, but is to be decided by
applying common sense standards.’54

49. The underlying contractual rationale for this approach was based upon
(i) the presumed intention of the parties and a proper interpretation of
the relevant terms of the contract – to the effect that the parties must
have intended that any delay should be attributed by the contract
administrator to only one cause; (ii) in light of the foregoing, an analogy
drawn with the approach to causation taken in the common law
insurance cases referred to above; and (iii) the need to be able to resolve
the supposed conundrum of the ‘obverse problem’: namely, that the
contractor and the employer cannot both be allowed (by whatever
causation test is applied) to both win their money claims arising from a
period of delay (one for loss/expense and the other for LADs).

50. There are now, of course, well documented problems with adopting the
‘dominant cause’ test generally to extension of time, loss and expense
and damages claims under building contracts.

51. First, the dominant case test does not resolve the problem created where
there is no one dominant cause of the relevant delay or loss (ie where
there are two or more concurrent causes of equal or approximately equal
causative potency).

54 See Anthony May, Keating on Building Contracts (London, Sweet & Maxwell, 5th ed
1991), page 195.

11
52. Second, the ‘dominant cause’ test is inconsistent with the ‘but for’ test
since there is no need to identify a ‘dominant’ cause unless there is some
other cause of the delay/loss which, but for the dominant cause, would
have resulted in the same delay/loss being sustained.

53. Thus, notwithstanding the fact that the claimed delay or loss/expense
would have been incurred anyway, if the ‘dominant cause’ test is
applicable the contractor would nevertheless become entitled to a further
extension of time/payment as long as the employer risk event is
construed as the dominant of the competing causes. Such an
inconsistency does not sit well with the typical interpretation of JCT
type loss and expense provisions, as usually these are construed as
importing the more stringent ‘but for’ test of causation.

54. Third, although the ‘dominant cause’ approach is (or at least was) well
established in the law of insurance contracts and, in principle, could be
of wider application in other contractual situations, there would not
appear to be any compelling reason why it should be taken to be of
general application as representing the causation test under JCT worded
construction contracts.

55. Fourth, the marked absence of specific support in any authority for the
application of the ‘dominant cause’ test in construction claims
(especially in the form of the post-Malmaison hybrid test for extension
of time provisions described above) is becoming more telling with
time.55

56. There is Scottish authority, though only in obiter dicta, to the effect that
the ‘dominant cause’ approach should apply to loss and expense claims
under the JCT form56 and extension of time claims,57 albeit potentially in
conjunction with the apportionment approach (see below) where no
dominant cause can be identified. There is no English authority in
support of its application to such claims under construction contracts –
either by itself or in combination with the Malmaison approach in the
form of the hybrid test discussed above. In fact, there is only English
authority refusing to follow the ‘dominant cause’ approach in an
extension of time claim.58

The Malmaison approach to concurrent delay

57. Named after the decision in Henry Boot Construction v Malmaison
Hotel, Dyson J summarised the Malmaison approach as follows:
‘... it is agreed that if there are two concurrent causes of delay, one
of which is a relevant event, and the other is not, then the
contractor is entitled to an extension of time for the period of delay

55 Malmaison: note 3.
56 Laing Management (Scotland) Ltd v John Doyle Construction Ltd [2004] BLR 295
(CSIH), paras [14]-[15].
57 City Inn, note 4, para [42].
58 H Fairweather & Co Ltd v London Borough of Wandsworth (1987) 39 BLR 106 (OR).

12
 caused by the relevant event notwithstanding the concurrent effect
of the other event. Thus, to take a simple example, if no work is
possible on a site for a week not only because of exceptionally
inclement weather (a relevant event), but also because the
contractor has a shortage of labour (not a relevant event) and if
the failure to work during that week is likely to delay the works
beyond the completion date by one week, then if he considers it
fair and reasonable to do so, the architect is required to grant an
extension of time of one week. He cannot refuse to do so on the
grounds that the delay would have occurred in any event by reason
of the shortage of labour.’59 [emphasis added]

58. In spite of the fact that, as indicated in the first highlighted piece of text
above, this analysis was based upon an agreement between the parties
rather than a reasoned decision of the Court, this represents the now
generally accepted approach to resolving issues of ‘true concurrency’60
(ie in case of delay events of approximately equal causative potency) in
the context of extension of time claims – at least in the JCT
form/wording.61

59. The contractual rationale for such an approach is that where the parties
have expressly provided in their contract for an extension of time caused
by certain events, the parties must be taken to have contemplated that
there could be more than one effective cause of delay (one of which
would not qualify for an extension of time) but nevertheless by their
express words agreed that in such circumstances the contractor is
entitled to an extension of time for an effective cause of delay falling
within the relevant contractual provision.62

The problem with the current consensus

60. As summarised above, the current consensus as to the applicable test of
causation under extension of time clauses (at least in the JCT contract
wording) is that there should be a combination of the ‘dominant cause’
test and the Malmaison approach – whereby the latter only provides a
route to relief where there is true concurrency, ie competing causes of
approximately equal causative potency.

61. So, for example, Hudson summarises the position as follows, adopting
Lord Osborne’s summary of the position in the law of England and
Wales in the City Inn case:

59 Malmaison, note 3, para [13].

60 But note the criticism by Ian Duncan Wallace QC of the simple ‘rule’ as to concurrent
causes entitling EOT relief (as summarised at paragraphs 2.1.7, 3.7.1 and 3.7.7 of the
SCL Delay and Disruption Protocol: note 3) in the seminal article, ‘Blinding with
Science? Extension of Time and Compensation ‘Protocol’: a Critique’, 7(2) Construction
& Engineering Law, page 5.
61 As confirmed by Akenhead J in Walter Lilly, note 3, paras [362]-[370]; also by Coulson
J in Greenwich Millennium Village, note 3, para [176].
62 See Keating, note 3, para 8-026.

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 ‘... if one of the potential causes of delay could be identified to be
dominant then it should be regarded as the cause to the exclusion
of other potential causes, if no cause could be identified as the
dominant cause a claim for extension of time should not fail.’63

62. This hybrid test of causation requires, therefore, a preliminary enquiry to

see whether the (old) ‘dominant cause’ test could still apply to negate
the significance of one of the competing effective causes; only if a
dominant cause cannot be identified should the less restrictive
Malmaison test be applied to generate an entitlement to relief.

63. As summarised above, however, it is now widely accepted that there are
many obvious problems with adopting the ‘dominant cause’ test –
certainly as of general application to extension of time, loss and expense
and damages claims under building contracts.

64. It is difficult to understand why the parties to relevant contracts should

be taken to have intended that this test has any relevance at all to the
allocation of the risk of delays between them given (i) the typically
opaque wording of the relevant clauses; (ii) the absence of a general rule
of law applying the test in common law damages claims; and (iii) the
general acceptance of what has become known as the Malmaison
approach to concurrency issues in extension of time claims – an
approach which is, it is suggested, fundamentally inconsistent with the
‘dominant cause’ test.

65. There is some tension between the contractual reasoning supporting the
application of the ‘dominant cause’ and Malmaison approaches that
points toward them really being alternatives. The Malmaison approach
proceeds on the premise that the parties intended that there would be no
need to choose between competing causes of delay; the ‘dominant
cause’ approach rests on the presumed intention of the parties to the
effect that there cannot be more than one cause of delay for the operation
of the extension of time clause.

66. It is of course possible, in an attempt to justify the hybrid causation test

that represents the current consensus, to articulate a presumed intention
of the parties to reflect a combination of these separate tests (that the
‘dominant cause’ test should apply, unless there is ‘true concurrency’),
but it is suggested that this is a rather convoluted presumed intention for
the parties to be saddled with – certainly absent express words to
indicate that this is what has been agreed.

67. It is also one that is unnecessary to make the relevant clauses work and
introduces a distinction that it is difficult, if not impossible, to actually
understand and predict the application of in practice: what is the
difference between two competing effective causes of delay of ‘unequal
causative potency’ and two competing effective causes of delay of
‘approximately equal causative potency’?

63 Hudson, note 5, para 6-061.

14
What about apportionment?
68. There is Scottish authority to the effect that in the event of concurrent
causes of delay or loss and expense a court may apportion the relevant
period of delay or loss between the contractor and employer.64

69. In City Inn v Shepherd Construction, the Outer and Inner Houses of the
Court of Session took a quite different approach to causation under the
JCT form of contract.65 The Outer House held that where there are
concurrent causes of delay, none of which can be described as dominant,
the delay should be apportioned as between the Relevant Events and the
contractor’s risk events.66

70. The justification for such an approach was said to be the fact that by
clause 25 of the JCT form the architect is required to fix such new
completion date as he considers to be ‘fair and reasonable’ in the
circumstances. This was taken to indicate that the architect should look
at the various events causing delay using a fairly broad approach and
that where there is true concurrency apportionment will frequently be
appropriate.

71. Interestingly, therefore, the Scottish courts have also arrived at a

position whereby a hybrid test of causation is taken to apply in
construction claims – whereby a new causation test has been grafted on
to the ‘dominant cause’ test, to potentially apply so as to generate a right
to relief in situations where no dominant cause can be identified on the
facts (albeit in Scotland contractual apportionment is preferred to the
Malmaison approach as the further causation test in such situations).

72. It is also notable that a similar approach appears to have been taken to
this issue in most of the common law world to date.67

73. In England, however, apportionment has attracted much criticism on the

basis that (i) too much emphasis has been placed on the words ‘fair and
reasonable’ in the relevant clause; (ii) it would be unworkable and
unpredictable in practice; (iii) it is unclear why relative culpability
should be relevant to the assessment of delay; (iv) if adopted, it would
risk triggering the prevention principle and thereby placing time at large;

64 See Laing Management (Scotland) Ltd v John Doyle Construction Ltd, note 56, and City
Inn v Shepherd, note 4.
65 City Inn v Shepherd: note 4
66 It may be doubted whether, on a careful reading of the case, there was in fact true
concurrent delay.
67 See DHCJ Westbrook SC in W Hing Construction Co Ltd v Boost Investments Ltd
[2009] HKCFI 95, [2009] BLR 339, para [61], adopting a City Inn analysis. See also
Matthew Cocklin, ‘International Approaches to the Legal Analysis of Concurrent Delay:
Is There a Solution for English Law?’ SCL Paper 182 (April 2013): <www.scl.org.uk>.

15
 and (v) apportionment in common law claims for damages is not
generally available anyway (absent a statutory right to the same).68

74. It is of course possible for parties to expressly provide for apportionment

in their contract in such circumstances (although, plainly, the JCT
clauses under consideration do not do so); but, in the absence of such a
provision it must be doubted whether a power to grant a ‘fair and
reasonable’ extension of time, whilst giving a wide discretion to the
contract administrator, is sufficient to introduce apportionment in the
context of the causation assessment required under another part of the
provision.

75. In the construction context, Peak Construction v McKinney is sometimes

referred to as an example of a similar apportionment approach being
approved, although it is probable that the apportionment contemplated in
this case related to splitting a period of delay between different causes,
rather than of a situation where there were concurrent causes of a single
period of delay, as contemplated in the passages above.69

76. If responsibility for a period of concurrent delay were to be apportioned

between the parties, the contractor would not receive its full extension of
time and the prevention principle may then come into play. For this
reason, many commentators have rejected the application of the
apportionment approach as a matter of principle.70

77. In English law, the viability of this approach has been seriously doubted,
even in claims for damages;71 and there is no authority extending it to
the assessment of concurrent causes of loss and expense and extension
of time entitlements under the express provisions of building contracts.
In fact in the recent decision of Walter Lilly (on which see below), it was
expressly decided that the approach taken in City Inn did not reflect the
law in England.72

68 See generally the discussion of this issue by Ramsey J in the papers entitled ‘Claims for
Delay & Disruption: the impact of City Inn’ presented at the annual TECBAR
conference in January 2001 and in the TECBAR Review, Spring 2011.
69 Salmon LJ in Peak Construction Ltd v McKinney Foundations Ltd (1970) 1 BLR 111
(CA), page 119.
70 See Ramsey J, note 68, page 15; Hudson, note 3, paras 6-060 and 6-062; and the decision
in Walter Lilly: note 3.
71 In Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd [1990]
1 QB 818 (CA), the principle of apportionment in these situations was doubted. It
should also be noted that the Law Commission, note 9, referred to the decision in
Tennant Radiant Heat, note 11, as ‘an unusual application of causation principles...’,
although the report concluded by recommending that apportionment be available under
all forms of contract, save ‘where the contract excludes it, whether expressly or by
implication from the nature and extent of the contractual duty undertaken by D’ (see
paragraphs 3.20, 4.24-4.26 and 5.1); see now the decision of the TCC in Hi-Lite
Electrical: note 27.
72 Walter Lilly: note 3

16
A new test?
78. A pattern can be discerned from a number of recent authorities that
suggests a possible move away from the relevance of the ‘dominant
cause’ test and, on any view, a marked reluctance even to recognise the
existence of the hybrid test referred to above. On the contrary, support
for a more causally relaxed test can be detected – an ‘effective cause’
test.

79. Thus, in De Beers v Atos Origin IT Services, Edwards-Stuart J described

the general rule in construction claims in a manner that would not appear
to leave much room – or need – for the concept of a prevailing dominant
cause:
‘The general rule in construction and engineering cases is that
where there is concurrent delay to completion by matters for which
both employer and contractor are responsible, the contractor is
entitled to an extension of time but he cannot recover in respect of
the loss caused by the delay. In the case of the former, this is
because the rule where delay is caused by the employer is that not
only must the contractor complete within a reasonable time but
also the contractor must have a reasonable time within which to
complete. It therefore does not matter if the contractor would have
been unable to complete by the contractual completion date if
there had been no breaches of contract by the employer (or other
events which entitled the contractor to an extension of time)
because he is entitled to have the time within which to complete
which the contract allows or which the employer’s conduct has
made reasonably necessary.’73

80. There is also no reference to the relevance of the ‘dominant cause’ test
in obiter dicta in other recent authorities that have adopted the De Beers
summary above and confirm that the Malmaison approach represents the
now generally accepted approach to resolving issues of concurrency in
the context of extension of time claims – at least in the JCT form.74

81. Thus, in Walter Lilly, Akenhead J described the general approach to

causation in extension of time clauses as follows:
‘In any event, I am clearly of the view that, where there is an
extension of time clause such as that agreed upon in this case and
where delay is caused by two or more effective causes, one of
which entitles the Contractor to an extension of time as being a
Relevant Event, the Contractor is entitled to a full extension of
time. Part of the logic of this is that many of the Relevant Events
would otherwise amount to acts of prevention and that it would be
wrong in principle to construe Clause 25 on the basis that the
Contractor should be denied a full extension of time in those

73 De Beers v Atos Origin IT Services, note 3, para [177].

74 Akenhead J in Walter Lilly, note 3, paras [362]-[370] and Coulson J in Greenwich
Millennium Village Ltd, note 3, para [176].

17
 circumstances. More importantly however, there is a straight
contractual interpretation of Clause 25 which points very strongly
in favour of the view that, provided that the Relevant Events can
be shown to have delayed the Works, the Contractor is entitled to
an extension of time for the whole period of delay caused by the
Relevant Events in question. There is nothing in the wording of
Clause 25 which expressly suggests that there is any sort of
proviso to the effect that an extension should be reduced if the
causation criterion is established. The fact that the Architect has
to award a ‘fair and reasonable’ extension does not imply that
there should be some apportionment in the case of concurrent
delays. The test is primarily a causation one. It therefore follows
that, although of persuasive weight, the City Inn case is
inapplicable within this jurisdiction.’75 [emphasis added]

82. It is suggested that this passage is significant for three reasons. First, it
expressly rejected City Inn and the apportionment approach to dividing
responsibility on causation grounds in concurrency situations under JCT
extension of time clauses. Second, once again no reference was made to
a continuing relevance for the ‘dominant cause’ test in this context at all.
Third, however, it also implicitly supports the emergence of what I have
called the ‘effective cause’ test – by reference merely to the need for
‘two or more effective causes’.

83. Note also in the context of a loss and expense claim the summary of the
general position by Coulson J, omitting any reference to the ‘dominant
cause’ test, in Greenwich Millennium Village v Essex Services:
‘And some caution is necessary when referring, in this context, to
cases in the construction field addressing the particular problem of
delays where there are two competing causes, one of which is the
contractor’s fault and one which is the employer’s fault. The usual
answer, as Edwards-Stuart J pointed out in De Beers UK Ltd v
Atos Origin IT Services UK Ltd [2010] EWHC 3276 (TCC), is that
the contractor was entitled to an extension of time but not entitled
to financial compensation. As the judge put it: “… the contractor
cannot recover damages for delay in circumstances where he
would have suffered exactly the same loss as a result of causes
within his control or for which he is contractually responsible”.’76

84. Further, the demise of the ‘dominant cause’ test (at least outside the field
of insurance cases) is perhaps now confirmed by the recent decision in
ENE Kos I Ltd v Petroleo Brasileiro.77 In this case, a majority of the
Supreme Court held, in relation to the operation of an indemnity clause
under a charterparty, that delay/loss associated with unloading cargo
after the owner’s decision to withdraw a vessel due to non-payment of
hire was not an ordinary incident of service caused by the charter

75 Walter Lilly, note 3, para [370].

76 Greenwich Millennium Village, note 3, para [176].
77 ENE Kos I Ltd v Petroleo Brasileiro SA [2012] UKSC 17, [2012] 2 AC 164.

18
 coming to an end, but caused by the charterer’s prior order to load the
cargo on the vessel and therefore covered by the indemnity.

85. Lord Sumption described the issue under consideration as the proper
interpretation and purpose of the contractual provision, and the causation
question as follows:
‘Like all questions of causation, this one is sensitive to the legal
context in which it arises. It depends on the intended scope of the
indemnity as a matter of construction, which is necessarily
informed by its purpose. We are not therefore concerned with
questions of remoteness and foreseeability of the kind which
would arise in the law of damages, where the object is to limit the
range of consequences for which a wrongdoer may be said to have
assumed responsibility in the eyes of the law ... The real question
is whether the charterers’ order was an effective cause of the
owner having to bear a risk or cost of a kind which he had not
contractually agreed to bear. I use the expression ‘effective
cause’ in contrast to a mere ‘but for’ cause which does no more
than provide the occasion for some other factor unrelated to the
charterers’ order to operate. If the charterers’ order was an
effective cause in this sense, it does not matter whether it was the
only one.’78 [emphasis added]

86. In his judgment Lord Clarke, like Lord Sumption, expressly adopted and
applied an ‘effective cause’ test and in doing so even disparaged the
usefulness of the concept of a dominant cause:
‘I further agree with Lord Sumption that the real question under
clause 13 is whether the charterers’ order to load the cargo was an
effective cause of the owners having had to bear a risk or cost of a
kind which they had not contractually agreed to bear and that, if
the charterers’ order was an effective cause in the sense that it was
not a mere ‘but for’ cause which did no more than provide the
occasion for some other factor unrelated to the charterers’ order to
operate, it does not matter whether it was the only effective cause.
It is not I think helpful to use other adjectives to describe the
cause. Different adjectives have been used over the years,
including ‘proximate cause’, ‘dominant cause’ and ‘direct cause’.
To my mind they are somewhat misleading because they tend to
suggest that the cause must be the most proximate in time or that
the search is for the sole cause. Lord Mance says at para 37 that
the search is for ‘the ‘proximate’ or ‘determining’ cause’.
However, I respectfully disagree because such a formulation
suggests that there can be only one such cause, whereas there may,
depending upon the circumstances, be more than one effective
cause.’79 [emphasis added]

78 Petroleo Brasileiro, note 77, para [12].

79 Petroleo Brasileiro, note 77, paras [61]-[62].

19
87. According to Lord Clarke, an ‘effective cause test’ applied, whether in
the context of contracts of indemnity or insurance:
‘As I see it, the question in each case, whether under a contract of
insurance or under a contract of indemnity, is whether an effective
cause of the alleged loss or expense was a peril insured against or
an indemnifying event. [...]
It is true that the authorities do not contain much discussion of the
circumstances in which there may be two effective causes.
However, in my opinion, they clearly show that two effective
causes can, in principle, exist. To my mind this can be clearly
seen from Wayne Tank and Pump Co Ltd v Employers Liability
Assurance Corpn Ltd [1974] QB 57, Lloyd (JJ) Instruments Ltd v
Northern Star Insurance Co Ltd (The Miss Jay Jay) [1987] 1
Lloyd’s Rep 32 and Midland Mainline Ltd v Eagle Star Insurance
Co Ltd [2004] EWCA Civ 1042, [2004] 2 Lloyd’s Rep 604.’80
[emphasis added]

88. If of no or doubtful assistance in a claim under an indemnity (or even

possibly in the insurance context), it is difficult to see why the concept
of the ‘dominant cause’ should continue to cast a shadow over
construction law.

Conclusions
89. In approaching the question of causation in time and money claims
under construction contracts, one should first decide, as a matter of law,
what causal connection the contract requires and then consider, as a
question of fact, whether the claimant has satisfied this legal
requirement.

90. It is suggested that (i) the ‘dominant cause’ test should no longer be
considered as relevant to such claims (at least in the JCT form and
absent clear wording indicating an intention to apply the same); (ii) the
very concept of concurrent effective causes of ‘approximately equal
causative potency’ is difficult to understand, unhelpful and unnecessary;
(iii) a new, less restrictive, approach to the test of causation in
concurrent delay claims can be justified on a proper construction of the
relevant provisions, is more soundly based in analogous claims for
damages for breach of contract and can even be detected in recent
authority – what I call the ‘effective cause’ test; (iv) an effective cause is
one that operates by itself or combines with another to cause critical
delay to the completion date of a project; and (iv) an effective
concurrent cause for these purposes is simply one that, had it operated in
the absence of the delay event(s) that the contractor is responsible for,
would have nevertheless caused the same period of critical delay to the
Works in the circumstances that the parties would or should have found
themselves in under this hypothesis.

80 Petroleo Brasileiro, note 77, paras [70]-[71].

20
91. The latter could be established in practice by the application of a
‘reverse ‘but for’ test’, namely one where the claimant must show that,
even absent the effect of the delay events that it is contractually
responsible for, the same period of actual critical delay would have
occurred to the project at the relevant time. Analogous hypothetical
exercises are routinely applied by courts in different areas of the law and
would not be beyond contract administrators.

92. Such an approach would also be consistent with the decision of Colman
J in Balfour Beatty v Chestermount Properties, to the effect that under
the JCT wording there could be an entitlement to an extension of time
even during a period of culpable delay; and that any right to an extension
of time generated in a period of contractor culpable delay after the
completion date for the Works should be assessed on a ‘net’ rather than
a ‘gross’ basis.81

93. The recognition of a more comprehensible approach to causation and

concurrency in construction law may indeed herald a reconsideration of
preconceptions as to what amounts to ‘actual’ as opposed to ‘theoretical’
causes of delay82 – but, ultimately, the answer to that question must
depend upon where one starts from as the applicable legal test of
causation for any particular claim under the contract.

Vincent Moran QC is a barrister at Keating Chambers.83

© Vincent Moran and the Society of Construction Law 2014

The views expressed by the author in this paper are his alone, and do not necessarily
represent the views of the Society of Construction Law or the editors. Neither the
author, the Society, nor the editors can accept any liability in respect of any use to
which this paper or any information or views expressed in it may be put, whether
arising through negligence or otherwise.

81 Balfour Beatty Building Ltd v Chestermount Properties Ltd 62 BLR 12 (Comm).

82 It is notable that the discussions contained in many of the well known cases in this field
as to the nature of the causation requirement, albeit always obiter dicta, proceed on the
basis that a relevant event must as a matter of fact be an ‘actual cause of delay’ without
really first deciding as a matter of law precisely what test of causation should be applied
to establish this. See eg Colman J in Balfour Beatty v Chestermount Properties, note 81,
page 31 and Hamblen J in Adyard Abu Dhabi, note 1, paras [264]-[280].
83 Vincent Moran is also the main author of the revised chapters 8 and 9 in Keating, note 3,
dealing with causation, delay and time and money claims; an editor of the 31st edition of
Chitty on Contracts: note 17; and was leading counsel for the architect defendant in the
Walter Lilly case: note 3.

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