How to be good 1st March 2006 WHY CAN’T THE INDUSTRY DECIDE WHICH TYPE of delay analysis to use

in delay claims? Here’s an example of the confusion. Back in October last year, the Society of Construction Law debated a motion that time impact analysis is the most appropriate technique. Four expert delay analysts argued in favour of each of the four main techniques – see previous paper “Listen, this is important”. A show of hands before and after the debate defeated the motion. Sizeable chunks of the audience voted for each of the techniques, going against the SCL’s delay protocol, which recommends only one technique in all circumstances – time impact analysis. O if the gurus cannot reach consensus, how is the rest of the industry supposed to know which technique to adopt? One thing is clear – the industry is not using time impact analysis across the board. Instead, there is much eclecticism. What people want is confidence: the technique they choose will find favour with the other side, and – this is the big question – that, if it comes to it, an adjudicator or a court will approve of that choice. Over the years, different judges have taken different approaches. First, it is always open to a judge to reject the parties’ analyses – even complicated technical analyses produced by independent experts with impeccable credentials. There is a school of though that says that delay is simply a matter of fact, and that as such delay experts are superfluous. Ascon vs McAlpine is a good example of a case where the judge made his own analysis by reference to his findings of fact. However, this does not give full credit to the potential complexities of programming and causation in delay on more complicated projects. The as-planned versus-as-built type of analysis does not often get to court, but it often features in adjudications. This technique is only appropriate in low-value disputes or adjudications where time does not allow better analyses. There is no judicial guidance on whether it should be used and, if so, how. In Barker Construction vs London Portman Hotel (1997) the judge accepted an asplanned impacted analysis. As far as he was concerned, all the expert had to do was perform “a logical analysis in a methodical way”. Things may have moved on since then. As techniques have become more sophisticated, the industry has cottoned on to their deficiencies. In Skanska vs Egger, a complicated time impact analysis by Egger’s expert was rejected by the judge, who favoured Skanska’s simpler approach – despite the fact that it was an in-house analysis and was not “independent”. In relation to as-built-but-for-analyses, this technique would come closest to the way a court might look at delay disputes. But there is scant judicial comment on it in the UK decisions. Other factors to consider when deciding on the “right” technique are: ƒ ƒ ƒ The contractual requirements in terms of proof of entitlement. The nature of the evidence available. The amount claimed.

There is a ray of light. hope this happens as it would put an end to the sort of navel-gazing this subject encourages. I. Frankly. if the contract only makes provision for extensions of time where actual – rather than likely – delay has been caused. for one.So. Recently judges at the TCC have been prepared to survey the relevant law and consolidate it. because these techniques look at likely rather than actual delay. how big is the claim? A court looks at proportionality when deciding questions of costs and if the cost of an analysis is not proportionate to the amount in dispute the cost may not be recoverable. If the contractor’s programme was unrealistic. In the meantime. there will be little chance of persuading a tribunal that an as-planned impacted analysis is appropriate. how appropriate will an as-planned impacted or time impacted analysis be? Arguably not at all. When a delay claim next comes before the TCC the judge might survey the law on the techniques of delay analysis.lane@traverssmith. the debate goes on – I hear the experts will be battling it out again at another SCL event planned for next month (March 2006). Then again. Nick Lane Postscript: Nick Lane is a lawyer specialising in construction law at solicitor Travers Smith: nicholas. it is high time someone got a grip on all .

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