Concurrent Delay: The English Approach

The recent  TCC case of Walter Lilly v Mackay confirms that English law takes a binary "all or nothing" approach to determining whether an extension of time ("EOT") is due under a JCT contract if there is concurrent delay.

Facts of the case

In 2004, a contractor ("WLC") entered into a contract with an employer ("DWM") for the construction of 3 large houses on the site of what was previously the Earls Court Telephone Exchange. One of the 3 plots of land was owned by Mr Mackay, who was a part-owner of DWM. The contract, which was subsequently divided into separate contracts for each property was based on the JCT 98 form. The contract price for Mr Mackay's property was c. £5 million and the date for completion was 23 January 2006.