Nonesesical Critical PAth Method

The Nonsensical Application of Critical Path Method to Extensions of Time December 2022
Robert Tustin MRICS MSc (King’s College) FCIArb THIS PAPER IS NOT INTENDED TO BE RELIED UPON
THE NONSENSICAL APPLICATION

OF CRITICAL PATH METHOD TO EXTENSION OF TIME
THE TRUTH ABOUT CRITICAL PATH ANALYSIS REVEALED1
1. The principles behind extension of time
Most procurers of construction works want their project to be completed in a

timely fashion; open for business and generating revenue in some way, or at
least justifying the money spent on the project. Most procurers also like to know
where they stand to the extent possible.
And it is because of these needs for speed and ‘certainty’ that construction
contracts usually include a fixed completion date. Without it, the contractor
would be left to undertake the work without a deadline, or more accurately
within “a reasonable time”.
Keating on Building Contracts 5th edition2 explained, “If no time is specified for
completion of the contract a reasonable time for completion will normally be
implied. What is a reasonable time is a question of fact to be considered in
relation to circumstances which existed at the time when the contractual
services were performed”.
Such ‘reasonable time’ might be hard to establish if the employer wants to

assert that the contractor is taking too long about things. With a fixed
completion date, there’s no need for the employer to prove what a reasonable
time for completion was (at least in relation to the original scope of Works) and
furthermore everybody knows where they stand, because this reasonable period
is replaced/represented by the period stated in the contract.
The need for speed however also means that contractors are usually asked to
start work before the design is fully complete and/or before the employer knows
its final requirements, and often before the employer is fully ready to fully
accommodate the supply of the works. There are also always other unknowns
when the parties agree the contract, some of which it is fair (or most
commercially practicable) for the employer to take responsibility for.
The parties therefore accept that the agreed period will need to be adjusted for
additional periods in respect of any matters which were unaccounted for when
the parties agreed the contract and the contract period, and for which the
1 This paper does not contain legal advice. This paper does not contain advice or guidance. It
is a discussion paper which expresses a point of view or potential point of view, and is not
intended to be relied upon
2 (page 218): Keating on Building Contracts 5th edition , Vivian Ramsey, Sweet & Maxwell 1991
1
employer took the risk under the contract. This is where the extension of time
clause comes in. It provides for an adjustment of the fixed and agreed period, to
take into account unknown or ‘unaccounted for’ employer risk events.
Just as the original contract period is taken to represent a reasonable period for
undertaking the contract works, the job of the extension of time clause is
(subject to any further agreement between the parties for an additional period in
respect of any particular employer risk event) to evaluate a reasonable
additional period for completion by reference to the employer risks which
eventuated.
A fit for purpose extension of time clause therefore adds to the completion date
stated in the contract, a reasonable time for employer risk events, and the
contractor’s obligation should be to complete within that revised period.
There’s also another way to look at extensions of time clauses:
In the case of Dodd v Churton (1897)3 Lord Esher and Lord Justice Chitty held
(on the basis of a centuries old legal principle that a party may not take
advantage of or rely upon its own wrong), “if the building owner has ordered
extra work beyond that specified by the original contract which has necessarily
increased the time requisite for finishing the work, he is thereby disentitled to
claim the penalties for non-completion provided by the contract”. This is the
‘prevention principle’ in the construction industry, or more generally in
contracts which provide a fixed time for performance.
It can be said that the extension of time clause in one sense cured the mischief
identified by Lords Esher and Chitty, by enabling the employer to measure an
increase in the, “time requisite for finishing the work” and refix the completion
obligation accordingly.
The logic in all of the prevention principle judgements (up to 2011) is the same.
Without an applicable extension of time provision in the contract, there is no
mechanism for calculating date from which the damages can start other than the
original completion date stated in the contract, and the damages can not start
from the unextended original contract completion date because that original
fixed period can no longer be asserted by the Employer once by its actions it has
made that date unachievable, or has extended the necessary period for
undertaking the work beyond that date.
Once a matter which falls within the domain of the employer, extends (beyond
the contract completion date) the time reasonably needed by the contractor to
3 1 QB 562
2
complete the Works4 then the completion date falls away. Time becomes ‘at
large’, i.e. the contractor’s obligation reverts to completing in an (undefined)
reasonable time.
The reason why adding an extension of time clause keeps the damages alive, is
that it effectively changes the obligation from one to finish by date A to one to
finish by date B or C, where B and C represents the agreed contract period, plus
the additional period of events for which the employer is responsible. In that
way, the obligation (and therefore damages) can be enforced to the extent that
delays to the original date were not on account of the employer’s acts.
When looked at from the point of view of the prevention principle, the
extension of time clause fulfils the same requirement as from the point of view
of the fit for purpose model, i.e. to add a reasonable period in respect of
employer risk events. Whichever way you look at it, contractor ‘delays’ or
‘events’ are irrelevant to the assessment of extension of time entitlement.
In this way, the extension of time clause is measuring the period in which the
contractor could have finished (without accelerating through employer delay).
But this is also the period in which the contractor would have finished, but for
its own delays.
By any sensible measure this has to be how extensions of time, and damages
payments to the employer have to be calculated.
This is (properly called) the prevention principle approach. It could also be

called the fit for purpose approach.
Damages period = Actual period – original period – extension of time for

Employer delay.
And this is how a contract with an extension of time clause works.
2. Logically plausible alternative
The only alternative which might conceivably have some logical merit, would
be to say let’s forget about the employer delay completely, and just measure the
extent to which the contractor breached its obligation to perform as agreed5. In
other words an assessment of when the contractor would have finished the
4 Unless there is float or spare capacity in the original period, this extension beyond the completion date will
occur as soon as the employer act extends the works programme,
5 As discussed in The Wrong Path, the contractor is prima facie responsible for performance whichever party
was to ‘blame’ for the delay but this does not need further consideration here, and contractor and employer
delay is discussed in the normally perceived sense.
3
Works but for the employer’s delays. By this approach, an extension of time
would only be given for any additional delay to the project caused by the
employer on top of any delays which the contractor in any event caused itself
or ‘extra over’ employer delay, so:
Where Employer delay is not greater than Contractor delay: Damages

period = Actual period - original period
Where Employer delay is greater than Contractor delay: Damages period =
Actual period - original period - (extension of time for: Employer delay -
Contractor delay)
The job of the extension of time clause would be to calculate employer delay
AND contractor delay and subtract one from the other.
There are at least two problems with that approach:
i) In practice, the formula given above is not the approach which the
contract would actually take. Why go to all the trouble of adding up
the employer delay and adding up the contractor delay, taking them
away from one another and taking the result away from something
else (which is the only purpose an extension of time clause could
serve), when all that you have to do is simply add up the delay for
which the contractor was itself responsible? Damages period =
Contractor delay. You wouldn’t in reality have an extension of time
clause at all. Irrespective, it is strikingly obvious that neither
approach is what any standard form construction contract provides for.
Standard form construction contracts contain extension of time clauses
which add to the original contract period, periods for employer risks.
ii) From a damages point of view, the employer has suffered no loss to
the extent that the contractor caused delay does not exceed employer
caused delay6. The project would have been finished no earlier than
the aggregate of the employer delay, even if the contractor delay
didn’t exist. It’s a fundamental principle of almost any legal
jurisdiction, that a contracting party can only recover damages in
respect of loss incurred as a result of the other party’s non-
performance7. In English law the principle goes back at least 170 years
and has been enforced on multiple occasions in both the House of
Lords, and its successor the Supreme Court in the 21st century alone.
6subject to the point made the footnote on the previous page

7In some jurisdictions this provision is subject to certain exceptions, however they do not (in English law
anyway), appear to apply to critical path analysis (see the discussion in The Wrong Path).
4
3. An attempt to frame the ‘extra-over’ approach as in line with critical

path method
Notwithstanding the problems described in Section 2 above, in a paper from the
United States of America published by the American Bar Association, titled:
“Use of Critical Path Method Techniques in Contract Claims: Issues and
Developments, 1974 to 1988”, (Source: Public Contract Law Journal Vol 18,
No.2 (1988), pp 338-391), which appears to try to justify the use of critical path
method (CPM) in delay claims, and reviews the then history of critical path
claims in the American courts, the authors state (on page 347, effectively page
10) that,
”The CPM analysis must answer two questions to provide sufficient
proof of an extended duration claims: first, when did the contractor
actually complete its work; and second, when would the contractor have
completed its work absent government delays. The difference should be
the measure of government caused delays”.
Now, we know from a footnote on page 375 (effectively page 38 of the paper),
that in the paper, the term “extended duration claim” actually refers to a costs
claim, rather than an extension of time claim8. But the principle must also relate
to extensions of time. A critical path analysis measures the (employer) delays
on the critical path. That’s the case irrespective of whether the results of the
analysis are used for an assessment of extension of time, or an assessment of
prolongation costs.
So the authors of the paper presented by the American Bar Association (which
appears to have been re-circulated in 2014), are effectively arguing that the
purpose of a critical path analysis in a delay claim (which will be the same for a
‘time claim’ exercise or a ‘money claim’ exercise), is to measure the date when
the contractor would have completed its work absent employer delays.
This however is problematic not only for the 2 theoretical reasons set out in
Section 2 above, but because of the fact that the date when the contractor would
have completed its work absent government/employer delays, or but for
employer delay, is NOT what critical path analysis measures.
8 Aside from the fact that the paper starts at page 338, the structure of the paper is quite confusing, and the
chronology of events hard to establish from various citations scattered around the document. It’s also noted
that the reader has to notice a footnote on page 375 (effectively page 38 of the paper) in order to find out
that, “ ‘extended duration claim’ as used in this article refers to a contractor’s affirmative claim for delay
costs”, i.e. not extensions of time. If the reader misses the footnote, then much of the paper can appear to
have an entirely different meaning. This reader got the personal impression was that the paper may not have
intended to deliver a clear understanding (much like his conclusion on the 2002 Society of Construction Law
Hong Kong paper on concurrent delay – See The Wrong Path).
5
4. What a critical path analysis actually measures
First let’s just check what critical path analysis/critical path method means. A
good place to start is the definition which was provided by the UK’s Society of
Construction Law in its Protocol on Delay and Disruption of 2002, which
defined critical path in the following terms:
“The sequence of activities through a project network from start to finish,

the sum of whose durations determines the overall project duration.
There may be more than one critical path depending on workflow logic. A
delay to progress of any activity on the critical path will, without
acceleration or re-sequencing, cause the overall project duration to be
extended, and is therefore referred to as a ‘critical delay”.
This is the accepted definition of the critical path today. This author understands
that that is what critical path method has actually always measured, since its
‘invention’ in the 1950s as a planning tool, although it would appear that the
meaning of the term, particularly when it is applied to the assessment of
entitlement arising out of delays, has not always been fully understood - See
Appendix B.
The approach which critical path analysis takes to 35 very simple and
rudimentary hypothetical delay scenarios, is analysed in Appendix A to this
paper.
Appendix A demonstrates that the critical path analysis measures one of the
following, depending on the circumstances in which the delay events arose:
• The total delay caused by the employer irrespective of contractor delay,
i.e. delay ‘but for’ contractor delay (the fit for purpose or prevention
principle –properly so called – approach described in Section 1 above), or
• The additional delay caused by the employer on top of contractor delay,
or the ‘extra over’ employer delay, the delay ‘but for’ employer delay, or
the total delay caused by the contractor irrespective of employer delay.
The situations in which the analysis takes the fit for purpose approach, are those
where either i) the as-planned situation had the activity which was in fact hit by
the contractor event, sufficiently in float9 so as to exceed (or match) the period
by which the contractor event in fact preceded the employer event, or ii) the
employer delay event happened first.
9The only ‘exceptions’ are examples 33-35 where there was one path of events only, and the author analysed
concurrency on the basis of creating entitlement where there are parallel competing causes of delay.
6
In other circumstances, it gives entitlement based on the ‘extra over’ delay

caused by the employer, i.e. delay ‘but for’ employer delay.
On most construction projects, where there are multiple delays by both parties,
critical path analysis takes the approach shown in examples 31 and 32, which is
a (meaningless) hybrid between the two basic approaches.
The extent to which the overall result leans towards one method or the other
will depend randomly upon the float which affected activities had on an as-
planned basis, and completely randomly upon the order in which the delay
events arose on a case by case basis.
So the question which the paper presented by the American Bar

Association asserts “the CPM analysis must answer”, is something that a
CPM analysis simply does not answer. The apparent justification given by
the authors for using critical path analysis, is wholly invalid, because the
task which the authors states that the analysis must fulfil, is something
which by its nature critical path analysis does not fulfil.
5. Other justifications given for critical path analysis / CPM
What other justification has been provided for using CPM or critical path
analysis for assessing extension of time entitlement?
The authors of the ABA paper state (page 368) that a case by the name of
“Blackhawk Heating & Plumbing Co., Inc”10 (1975), found that there was no
entitlement to extension of time, because the Contractor had not demonstrated
that the employer’s delays were on the critical path. The author quotes the court
in that case (now on Page 380): “Since liquidated damages are only imposed for
delays in project completion, it is manifest that only those delays should be
considered which actually affect project completion. By their nature the delayed
activities involved must necessarily lie on the critical path as it was actually
completed”.
To the extent that this is taken to be intended to validate a critical path approach
(as it is understood today) to assessing extension of time entitlement, then this
would be based on unsound logic. The judge appears to be effectively stating
that it is axiomatic that extension of time entitlement is assessed on the basis of
delays which drive project completion, because delay damages are determined
by reference to project completion. But the reality is that an extension of time
clause is measuring neither liquidated damages nor the project completion date.
10 SBCA No. 2432, 76-1 BCA 11 11,649
7
An extension of time clause measures employer delay (beyond the contract

completion date).
It's worth noting by the way that the judge then says that the appellant
contractor, “can not successfully urge, as it apparently seeks to do, that because
critical contractor-caused delays…were concurrent with noncritical
Government delays…the imposition of liquidated damages may be avoided.
Relief from the imposition of liquidated damages must depend upon showing
concurrent delay in respect of activities on the critical path”. It’s conceivable
that I might be having a moment of obtuseness, but on the face of it, this seems
like complete nonsense.
What other attempts have there been to justify the application of critical path
analysis to delay claims?
The author of the American Bar Association paper also cites a case by the name
of “G.M. Shupe, Inc. v United States” (1984)11 as having held that,
“The reason that the determination of the critical path is crucial to the
calculation of delay damages is that only construction work on the
critical path had an impact upon the time in which the project was
completed…Delay involving work not on the critical path generally had
no impact on the eventual completion date of the project”.
The author of the ABA paper said that this decision related to, “the time
extension process”. This seems to be the same baseless logic of the approach in
Blackhawk. Again, extension of time clauses don’t measure the eventual
completion date, they measure employer delay.
How about the Society of Construction Law? They’ve been leading advocates
of the critical path approach for the last 20 years or more. In the 2nd edition of
their Protocol on Delay and Disruption, the Society of Construction Law states
that (emphasis added),
“Typically delay analysis requires the identification of the critical path(s)
to the completion date because delays which impact the completion date
must, by definition, reside on the critical path.”
If the SCL is referring to the date of actual completion, for the reasons set out
above, this does not justify an extension of time assessment measuring only
Employer delay which is on the critical path. The date of actual completion is
not directly relevant to an extension of time assessment. An extension of time
11 5 Cl. Ct. 662, 728 (1984)
8
assessment by its fundamental nature (see Section 1 above) measures Employer

delay (beyond the contract completion date).
If the SCL’s refence to “completion date” is to the contractual completion date,
then it simply isn’t true that only delay on the critical path impacts that date.
Sub-critical delays may also (obviously) extend beyond the contract completion
date. The job of the extension of time clause is to measure such employer delay,
so that the aggregate of it12 can be deducted from the period of overall delay in
order to identify the period of delay for which the contractor is liable and to
which liquidated damages can be applied.
The Society of Construction Law tries another reason in the Protocol stating,
“From a practical perspective, the analysis of the effects of the delay
events is simpler if it considers only those events that will result in Delay
to Completion (rather than a consideration of all events in the
programme) so that the grant of an EOT follows the outcome of the
critical path analysis.”
The alternative to a Critical Path Analysis however, isn’t a consideration of all
events in the programme, it’s a consideration of the effect, other things being
equal, which the Employer risk events that transpire, would have on the original
Date for Completion (or equivalent) stated in the contract. It’s a vastly more
simple exercise than critical path analysis, as is self-evident from the explosion
in growth of the delay analysis profession since modern approaches to criticality
and concurrency were introduced by the SCL Protocol from 2002 (the rise of
the construction claims and disputes industries is described in The Wrong Path
by the same author of this paper).
Justification for the critical path approach from the English judiciary is almost
non existent. Justice Hamblen (who is now Lord Hamblen) does seem to have
had a go at it though in case of Adyard Abu Dhabi v SD Marine Services
(2011)13.
Justice Hamblen discussed an issue which he referred to as concurrent delay,
and applied the concurrency/ theoretical delay authorities, but he appeared to
apply those principles to the separate and wider issue of critical delay. In other
words, what Justice Hamblen was really saying (see Appendix C) was that in
order to create extension of time entitlement, Employer delay events need to be
on the critical path. But he was using the concurrency authorities (discussed
elsewhere by the author of this paper14) to support that argument.
12 or conceivably where truly independent of contractor delay, the latest of it

13 [2011] EWHC 848 (Comm)
14 A History of Extensions of Time, The Wrong Path
9
A justification which Justice Hamblen appears to have offered for taking a

critical path approach, is that the critical path method takes a “prevention”
approach (paragraphs 264-265), or at least Adyard’s (the contractor’s) non-
critical path argument failed because it does not take a ‘prevention’ approach
(which Justice Hamblen appears to equate with the ‘extra-over’ approach).
Justice Hamblen’s conclusion is misleading for two reasons.
Justice Hamblen says, “On (Adyard’s) case there is no need to prove the event
or act causes any actual delay to the progress of the works. Notional or
theoretical delay suffices. That would seem to involve turning the prevention
principle on its head. The rationale of the principle is that it is unfair for a party
to insist on performance of an obligation which he has prevented the other
party from performing. That necessarily means prevention in fact; not
prevention on some notional or hypothetical basis”.
However a review of the authorities on the prevention principle stretching back
more than 100 years, reveals that they all reach the opposite conclusion.
The point of the prevention principle is that the employer can not insist upon the
agreed fixed period for completion, when the employer’s actions have meant
that that fixed period can not longer reasonably be achieved. It has nothing to do
with additional delay on top of the delay caused by the contractor. This was the
position taken in amongst others Holme v Guppy (1836)15, Roberts v The Bury
Improvement Commissioner (1870)16, Dodd v Churton (1897), Peak
Construction (Liverpool) Ltd v McKinney Foundation Ltd17 (1970), Trollope &
Colls Ltd v North West Metropolitan Regional Hospital Board (1973)18, Percy
Bilton Ltd v Greater London Council (1982)19 (House of Lords).
In Trollope & Colls for example, Lord Denning referred to the situation where,
“if one party by his conduct…renders it impossible or impracticable for the
other party to do his work within the stipulated time” and then stated that, “then
the one whose conduct caused the trouble can no longer insist upon strict
adherence to the time stated”. There’s no mention of whether the contractor was
going to finish late anyway. It’s not relevant to the prevention principle.
Seemingly quite remarkably, Justice Hamblen at one point relies upon this very
citation, where Lord Denning clearly expressed the opposite point of view (in
line with all the other prevention principle cases) to that which Justice Hamblen
endeavours to attribute20.
15 (1836) 3 M. & W. 387

16 LR 5 C P 310
17 1 BLR 111
18 [1973] 2 AII ER 260
19 [1982] 1 WLR 794
20 This might be quite normal for judges, but this author has noticed on two occasions, the President of the
Society of Construction Law Lord Justice Coulson since attributing meaning to other judges which appeared to
10
Justice Hamblen then states that the same principle which he has (it is submitted
wrongly attributed to the prevention principle) also applies to extensions of
time. He says (in relation to what appears to be the correct position, which he
has attributed to Adyard), “It is wrong in principle…It is wrong as a matter of
authority because it is contrary to the principles laid down in the authorities
dealing with both extensions of time and the prevention principle”.
Again this appears to be incorrect. We’ve seen above (Section 1) that it is an
incorrect conclusion in principle. In terms of authorities, we’ve seen that it is an
incorrect conclusion in relation to the prevention principle (page 10 above). As
analysed in ‘The Wrong Path’ and ‘A History of Extension of Time’ by this
author, it is not accurate either (or not fully accurate) in regards to the
authorities on extensions of time.
In those other papers by this author, it is concluded that the English cases never
took a critical path approach to extension of time prior to 1999. Since 1999 and
up to the Adyard case, this author identifies 4 judgements which do not take a
critical path approach, 3 which clearly do, and 4 in which it is unclear whether a
critical path approach (in the sense which we understand it today and as defined
by the Society of Construction Law) is advocated21. Furthermore, there are
multiple Supreme Court and House of Lords cases which advise as to how
damages should be assessed, and they do not do so in the manner which would
be achieved by following Justice Hamblen’s approach (discussed further in ‘The
Wrong Path’).
Furthermore, Justice Hamblen seems to be striving for a ‘but for employer
delay’ or ‘extra-over employer delay’ approach to extensions of time as
discussed in Section 2 of this paper above, which asides from being
conceptually invalid (as explained in Section 2 above), is not something which
critical path method in any case provides (as explained in Section 4 above).
Justice Hamblen (as he then was) refers to the critical path method or treats the
critical path method as being the “prevention” approach (See Appendix C). But
it is an illusion of prevention; an illusion of logic. Justice Hamblen states that
Adyard’s argument was turning the prevention principle on its head. The truth is
that it is Justice Hamblen who has turned the prevention principle on its head,
and turned logic on its head at the same time.
Nowhere does Justice Hamblen provide any reasoning for taking an approach
which creates a hybrid between the ‘extra-over employer delay’ outcome and a
fit for purpose outcome, as in fact critical path analysis does (as explained
this author on the face of it to be the plain opposite of the statements or findings which the applicable judges
had made, in support of similar principles to those being proposed by Justice Hamblen – See The Wrong Path.
21 There may be other judgements which this author has missed
11
further above and in Appendix A). There seems to be no such justification,

either given or capable of being given.
The Adyard case is discussed further in The Wrong Path and A History of
Extension of Time by the author of this paper.
Before we move towards drawing some final conclusions, let’s just briefly
return to the American Bar Association paper referred to above.
As mentioned in Appendix B of the current paper, the author of the ABA paper
refers (on page 363) to an American judgement, “Santa Fe Inc”22 (1984), and
states that,
“the contractor asserted that any work sequence or CPM path of

activities that ran past the contractually required completion date is
critical and delays on these work sequences due to changes are on the
critical path”.
The findings of the court on this argument never appear to be revealed in the
paper (it immediately jumps to a different point considered), however the
authors give their own thoughts on the proposition saying, “Because a project
extends beyond the contract completion date, this does not mean that the
longest chain of activities through the network in terms of time and the delays
which affect that chain cannot be determined”,
This is perfectly true, but it’s no justification whatsoever for actually

undertaking such a determination.
6. The additional costs to the construction and real estate industries

caused by critical path analysis
Approaches to managing construction projects appear to have changed
significantly over the last 20 years, with programme, progress and claim
reporting, monitoring and supervision becoming a collateral project incumbent
upon any construction or infrastructure project of size23. The last 20 years has
also seen an explosive growth in the disputes industries’ involvement in the
construction sector, and the creation of a new construction ‘delay analysis’
profession24.
These changes appear to be a direct result of the industry’s adoption during the
same period as above, of critical path analysis as the standard method of
22 4-2 BCA 11 17,341.

23 See the discussion in The Wrong Path questioning the benefits and purposes of these developments
24 An indicative timeline of the growth of these industries in the construction sector is provided in The Wrong
Path
12
extension of time assessment and associated wider attitudes towards extensions

of time, coinciding with:
- certain decisions of the English judiciary since 1999/2002
- the related adoption of the critical path approach within the Society of
Construction Law’s recommendations/guidance to the industry since
2002 (and first-in-time concurrency approach since 201725)
- to an extent, the adoption of standard form contracts which could be
argued to promote a critical path analysis approach, e.g. NEC 3 published
in 2005 and arguably FIDIC 1st edition of the new Red Book published in
199926.
Whole global industries have developed in the last 20 years as a result,
dependents upon the construction and real estate industries, relating in particular
to computer software (reporting, record keeping, notification, programme
calculation and assessment) and delay expert witness. The involvement of the
legal & disputes industries in construction has spiralled27. Publishing, legal
advertising, arbitration and adjudication institutions, universities and
professional institutions’ fees and income have thrived and flourished. All of
these organisations and/or industries play their part in and/or benefit from the
disputes machine which is centred around critical path analysis.
All of it is ultimately paid for by the construction and real estate industries,
together with the additional management costs and risk allowances that have to
be added to tenders as a result of effectively arbitrary liquidated damages
resulting from the new approaches to criticality and concurrency, and the related
delay game.
It’s not clear what the bill is on all of the above (in particular additional
management and administrative costs, disputes costs and priced risks), but it
must be several billions of dollars or tens of billions of dollars, paid for by a
combination of employers and contractors (and sub-contractors). Whilst putting
unacceptable and unsustainable risks on construction companies, and
undoubtedly a significant factor in contractor liquidations28, it is likely
ultimately mostly paid for by employers/developers.
Conclusions on next page.
25 See The Wrong Path or A History of Extension of Time’ by the author of this paper
26 As discussed in ‘The Wrong Path’ it is not clear that FIDIC requires a critical path approach
27 Discussed further in The Wrong Path
28 Discussed further in The Wrong Path
13
7. Conclusions
As a planning tool, critical path analysis has likely been very useful to the
construction industry. When applied to delay claims, this paper suggests that it
does not work.
The critical path approach fundamentally changes the task of assessing
extension of time, from one of measuring the extent to which employer delay
exceeds the fixed period for undertaking the works, to one of measuring -
seemingly inexplicably and randomly - employer delay when it impacts upon
what happens to be (at the particular point in the project which coincides with
the timing of the employer delay event) the then longest path to the completion
of the Works.
It could be viewed as a hugely resource intensive, charter for disputes. Without
wishing to be rude, it is a logical nonsense based upon a fallacy. Fundamentally
it does not fulfil the basic requirements of the task which it has been given. It
doesn’t provide a predictable entitlement or the ‘right’ entitlement. It calculates
a subjective and highly complex answer, to the wrong question.
No sensible and meaningful justification for the approach appears ever to be
been provided. It is submitted there is none which can be provided. Yet
somehow this method has been bought by and/or imposed upon the construction
and real estate industries which pay for it.
It may be that there has been a deliberate plan of ‘illusion’ or ‘slight of hand’ of
sorts, (or, depending how you look at it, quite legitimate strategic
gamesmanship) by clever people somewhere at the top of the chain. Conversely,
its adoption may simply be due to genuine confusion and misunderstanding,
including on the part of the judiciary.
Either way, as this author sees it (and he is perfectly happy and willing to stand
corrected if appropriate) the construction and real estate industries have been
sold a dummy, and left (arguably encouraged) to fight each other like cats and
dogs over the critical path, racking up vast bills in the process, ultimately to no
purpose at all other than having something to argue about.
Robert Tustin 11 December 2022*
*With slight adaptions to a paper with a similar title dated 9 December.
rob_tustin@yahoo.co.uk
THIS PAPER DOES NOT CONTAIN LEGAL ADVICE. THIS PAPER DOES NOT
PROVIDE ADVICE OR GUIDANCE, IT IS A DISCUSSION PAPER, AND IS NOT
INTENDED TO BE RELIED UPON. THIS PAPER EXPRESSES A POINT OF VIEW
OR POTENTIAL POINT OF VIEW, WHICH OTHERS MAY DISAGREE WITH.
14
APPENDICES
15
APPENDIX A – ANALYSIS OF THE BASICS OF CRITICAL PATH METHOD

The approach which critical path analysis takes to 35 very simple and rudimentary
delay scenarios, is analysed in this appendix.
In each example, delays introduced are indicated in black or – where they are on the
‘critical path’ – in either red or purple. Readers can review any of the examples in
order to check the logic.
In 32 of the 35 examples, a contractor delay event is introduced on one path of work,
and an employer delay event is introduced on the other path of work. In the other 3
examples (examples 32-34), employer and contractor events are introduced on a
single path of work (the calculations in examples 32-34 assume no concurrency
rules).
In some cases, the path of work which is impacted by the employer event is in (as-
planned) float. In some cases the path impacted by the contractor event is in as-
planned float. In some cases neither path has float and they are jointly critical.
In some cases, the contractor delay starts first. In some cases the employer delay
starts first.
In some cases, the contractor delay is longer than the employer delay. In some
cases the employer delay is longer than the contractor delay.
For completeness, In some of the examples (examples 23-28) which include
overlapping delays, two different analysis are undertaken, one analysis assessing
the delays strictly in a day by day sequence, and one analysis taking the Society of
Construction Law approach (explained elsewhere) of assessing delay events in full
in the sequence in which they start.
In the case of examples 31 and 32, slightly more complex scenarios are introduced,
where there are multiple (2) periods of delay by each party.
The results of each example are brought forward into the table at the front of the
appendix (split over 2 pages for presentation purposes due to the width of the results
table).
Some to note in the tables are:
• Where ‘extra-over Employer delay’ is a negative figure (i.e. where the
Contractor delay to completion exceeds employer delay to completion), it is
recorded in the table as 0 extra-over Employer delay.
• Where some entitlement is awarded, the ‘result’ column entry is highlighted in
red (otherwise entitlement is 0).
• Where the analysis follows the fit for purpose approach, the reason why is
highlighted in green.
The main take out from the results is that the critical path analysis measures one of
the following:
16
• The total delay caused by the employer irrespective of contractor delay, i.e.
delay but for contractor delay (the fit for purpose or prevention – properly so
called – approach described above), or
• The additional delay caused by the employer on top of contractor delay, or
the ‘extra over’ employer delay, or the delay but for employer delay, or the
total delay caused by the contractor irrespective of employer delay.
The situations in which the analysis takes the fit for purpose approach, are those
where either i) the as-planned situation had the activity which was in fact hit by the
contractor event, sufficiently in float so as to exceed (or match) the period by which
the contractor event in fact preceded the employer event, or ii) the employer delay
event happened first.
The only ‘exceptions’ to these rules are in examples 33-35 where there was one path
of events only, and the author analysed concurrency on the basis of creating
entitlement where there are parallel competing causes of delay.
Critical path analysis gives full fit for purpose extension of time entitlement for all
employer delay beyond the completion date, where the period that the employer
event starts earlier than a contractor event, exceeds the period of float belonging to
the employer event. In other circumstances, it gives entitlement based on the ‘extra
over’ delay caused by the employer, i.e. delay ‘but for’ employer delay.
On most construction projects, where there are multiple delays by both parties,
critical path analysis takes the approach shown in examples 31 and 32, which is a
hybrid between the two approaches.
The extent to which the overall result leans towards one method or the other will
depend randomly upon the float which affected activities had on an as-planned
basis, and completely randomly upon the order in which the delay events arose.
Some other points to note are:
• In 6 examples an assessment was done on both a sequential time basis and
on a sequential event basis. In 2 cases the analysis gave the same result. In 3
cases the analysis gave more entitlement for the sequential time assessment.
In one case (example 28), where the employer affected event was in float and
where a contractor event occurred during the employer event, the sequential
event approach gave more entitlement.
• In 4 of the 6 cases, a situation of concurrent delay occurred when using the
sequential time approach (highlighted in blue on the summary page and in the
example). In none of the cases did concurrent delay arise when using the
sequential event approach. This supports the author’s conclusion that the
Society of Construction Law’s method means that concurrent delay will not
arise, other than in single path scenarios.
• The ‘extra over’ period of delay is always the Employer delay beyond
completion less the Contractor delay beyond completion.
The table of results is set out below, followed by the worked examples (as noted, for
examples 1 and 2 please see Section 5 of The Wrong Path):
17
Starting Result (Employer

Ref Employer delay Employer delay Float Other comment delay as EOT)
1 Later Shorter None 'Extra over' only
2 Same Same E 'Extra over' only
3 Later Longer None 'Extra over' only
4 First Shorter None All
5 First Longer None All
6 Later Shorter None 'Extra over' only
7 Later Shorter C 'Extra over' only
8 First Longer E All
9 First Shorter C All
10 Later Longer E 'Extra over' only
11 First Longer C Always in float All
12 Later Shorter E Always in float No employer delay
13 Later Longer C Always in float All
14 First Shorter E Always in float No employer delay
15 Later Shorter C 'Extra over' only
16 First Longer E All
17 First Shorter C All
18 Later Longer E 'Extra over' only
19 First Longer C All
20 Later Shorter E 'Extra over' only
21 Later Longer C All
22 First Shorter E All
23 First Same E SEQUENTIAL TIME All
23 First Same E SEQUENTIAL EVENTS All
24 Later Same C SEQUENTIAL TIME All
24 Later Same C SEQUENTIAL EVENTS 'Extra over' only
25 Middle/Shorter C SEQUENTIAL TIME All
25 Middle/Shorter C SEQUENTIAL EVENTS 'Extra over' only
26 Wider/Longer E SEQUENTIAL TIME All
26 Wider/Longer E SEQUENTIAL EVENTS All
27 Middle/Shorter C SEQUENTIAL TIME All
27 Middle/Shorter C SEQUENTIAL EVENTS 'Extra over' only
28 Wider/Longer E SEQUENTIAL TIME 'Extra over' only
28 Wider/Longer E SEQUENTIAL EVENTS All
29 Employer, contractor, employer, contractor None MULTIPLE EVENTS All
30 Contractor, employer, contractor, employer None MULTIPLE EVENTS 'Extra over' only
31 Contractor, employer, contractor, employer None MULTIPLE EVENTS HYBRID
32 Employer, contractor, employer, contractor None MULTIPLE EVENTS HYBRID
33 Contractor, employer N/A ONE PATH All
34 Contractor, employer, contractor, employer N/A ONE PATH All
35 Contractor, both, employer, contractor, employer
N/A ONE PATH All
18
Total delay Employer Delay 'But Contractor Delay 'But Additional

Result (Employer to delay to for' the delay to for' the delay caused Extension LD
Ref delay as EOT) completion completion Contractor completion Employer by Employer of time liability
1 'Extra over' only 4 2 2 4 4 0 0 4
2 'Extra over' only 26 25 25 26 26 0 0 26
3 'Extra over' only 7 7 7 5 5 2 2 5
4 All 7 5 5 7 7 0 5 2
5 All 7 7 7 5 5 2 7 0
6 'Extra over' only 7 5 5 7 7 0 0 7
7 'Extra over' only 3 2 2 3 3 0 0 3
8 All 3 3 3 2 2 1 3 0
9 All 3 2 2 3 3 0 2 1
10 'Extra over' only 3 3 3 2 2 1 1 2
11 All 6 6 6 0 0 6 6 0
12 No employer delay 6 0 0 6 6 0 0 6
13 All 6 6 6 0 0 6 6 0
14 No employer delay 6 0 0 6 6 0 0 6
15 'Extra over' only 4 4 4 3 3 1 1 3
16 All 4 3 3 4 4 0 3 1
17 All 4 4 4 3 3 1 4 0
18 'Extra over' only 4 3 3 4 4 0 0 4
19 All 6 6 6 1 1 5 6 0
20 'Extra over' only 6 1 1 6 6 0 0 6
21 All 6 6 6 1 1 5 6 0
22 All 6 1 1 6 6 0 1 5
23 All 2 1 1 2 2 0 1 1
23 All 2 1 1 2 2 0 1 1
24 All 2 2 2 1 1 1 2 0
24 'Extra over' only 2 2 2 1 1 1 1 1
25 All 2 1 1 2 2 0 1 1
25 'Extra over' only 2 1 1 2 2 0 0 2
26 All 2 2 2 1 1 1 2 0
26 All 2 2 2 1 1 1 2 0
27 All 1 1 1 1 1 0 1 0
27 'Extra over' only 1 1 1 1 1 0 0 1
28 'Extra over' only 1 1 1 1 1 0 0 1
28 All 1 1 1 1 1 0 1 0
29 All 11 11 11 7 7 4 11 0
30 'Extra over' only 11 7 7 11 11 0 0 11
31 HYBRID 9 9 9 9 9 0 2 7
32 HYBRID 9 9 9 9 9 0 7 2
33 All 8 5 5 3 3 5 4 3
34 All 14 7 7 7 7 7 *7* *7*
35 All 16 7 7 11 11 5 *7* *9*
19
For examples 1 and 2, please see Part 5 of the paper The Wrong Path.
Examples 3,4,5,6
As-Planned (for examples 3-6, and 29-32):
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
Structure A
Structure B
EXAMPLE 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 4
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 5
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Structure A
Contractor delay
Structure B
Employer delay
20
Examples 7-22
As-planned, for examples 7-22:
1 2 3 4 5 6 7 8 9 10
Activity 1
Activity 2
EXAMPLE 7
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 8
1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
EXAMPLE 9
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 10
1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
21
EXAMPLE 11
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 12 1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
EXAMPLE 13 1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 14 1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
22
EXAMPLE 15
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 16
1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
EXAMPLE 17
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 18
1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
EXAMPLE 19
1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay E
Activity 2
Contractor delay
EXAMPLE 20 1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay E
Activity 2
Employer delay
23
EXAMPLE 21 1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 22 1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
Examples 23-28
1 2 3 4 5 6 7 8 9 10
Activity 1
Activity 2
PLEASE NOTE: FOR EXAMPLES 23-28 THERE IS AN ANALYSIS DONE BASED ON SEQUENTIAL EVENTS
(PER SCL) AND AN ANALYSIS DONE PER SEQUENTIAL TIME (see Part 5 of The Wrong Path)
EXAMPLE 23 SEQUENTIAL TIME

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
EXAMPLE 23 SEQUENTIAL EVENTS

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay
24

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
25
1 2 3 4 5 6 7 8 9 10
Activity 1
Activity 2

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Employer delay
Activity 2
Contractor delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay

1 2 3 4 5 6 7 8 9 10
Activity 1
Contractor delay
Activity 2
Employer delay
26
Examples 29,30,31,32
EXAMPLE 29
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 30
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 31
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29
Structure A
Contractor delay
Structure B
Employer delay
EXAMPLE 32
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29
Structure A
Contractor delay
Structure B
Employer delay
27
Examples 33,34,35
EXAMPLE 33
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Contractor delay
Employer delay
EXAMPLE 34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34
Contractor delay
Employer delay
EXAMPLE 35
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36
Contractor delay
Employer delay
ROBERT TUSTIN 11 DECEMBER 2022
28
APPENDIX B – CONFUSION OVER MEANING OF CRITICAL PATH
The author of the paper presented by the American Bar Association, refers (on page
363) to an American judgement referred to as “Santa Fe Inc” (1984), and states that
“the contractor asserted that any work sequence or CPM path of activities that
ran past the contractually required completion date is critical and delays on these
work sequences due to changes are on the critical path”.
The author gives his own thoughts upon this proposition saying, “Because a project
extends beyond the contract completion date, this does not mean that the longest
chain of activities through the network in terms of time and the delays which affect
that chain cannot be determined”, however he doesn’t seem to disclose what the
court’s conclusion was on the point, and continues the discussion of the case (on
page 363) by reference to the critical path without explaining the court’s definition of
the term.
A similar assumption to the contractor’s in the Sante Fe case was made in the UK
publication “The Presentation and Settlement of Construction Claims”, 198329, stated
(page 242) with regards to the JCT80 form, “in forming his view (as to extension of
time entitlement, the Architect) will need to consider whether the delay is on a
critical element and the effect of float in the Contractor’s programme”. The reader is
then referred to page 30 of the book for more information, where it’s stated, “…the
Architect is first required to form an opinion as to whether the delay is likely to
affect (or has affected) the completion date. A simple delay in progress during
the contract is not sufficient…it must be of such size or on such an element of
the works as will have an effect upon the completion date.”
Whether this is a reference to the contractual completion date or the actual

completion date we don’t know, but the reader is then directed to a figure 2.4:
The following explanation is provided:
29The author, Geoffrey Trickey, was a Partner of Davis, Belfield and Everest (later Senior Partner of Davis
Langdon)
29
The point made in Trickey is that in order to create entitlement, it’s not enough for
the directly affected activity to be delayed, but the delay must also use up all free
float for that activity (period Y) and use up Total float (“an effect on the completion
date”). There’s no reference (expressly or implicitly) to a critical path in today’s
sense. This was the argument put forward by the contractor (seemingly in
connection with a contract which expressly linked extension of time entitlement to the
critical path), in the Santa Fe case.
It's just worth bearing this in mind, particularly when the first United Kingdom case
which approved of a “critical path” approach (Henry Boot Construction (UK) Ltd v
Malmaison Hotel (Manchester) Ltd (1999)30) did so in brief passing without any
discussion of what the term meant or how it applied.
30 (1999) 70 Con LR 32
30
APPENDIX C – THE CONNECTION BETWEEN THE ADYARD CASE AND THE

CRITICAL PATH
The connection between critical path analysis and Justice Hamblen’s comments on
“concurrent delay”, are explained more fully in A History of Extension of Time and The
Wrong Path, by the author of this paper.
However, in order to briefly set out the connection for the purposes of this paper, it is
noted that Justice Hamblen says (emphasis added),
• “Adyard's causation case, both in relation to the prevention principle and any
claim for an extension of time, was that causation is established by showing
that the duration of the relevant event or act of prevention extended over the
original contractual sea trials date.” (para 258)
• “Colman J then went on to make it clear that delay (to the completion date)
must be therefore assessed by reference to the progress of the works (to the
then-projected completion date)”. (para 272)
• “Adyard submitted that the essential point, whether analysed as a matter of
"concurrency" or "prevention", is that the effect of the Buyer's risk event has to
be measured against the contractual completion date”. (para 285)
• “The particular passage relied upon by (Adyard) (provided by Adyard’s
argument that)…EOT should be granted to the extent that the Employer Risk
Event is predicated to prevent the works being completed by the then
prevailing contract completion date” (para 291)
• Commenting on figure 9 of Appendix D of the SCL Protocol, Justice Hamblen
says, “I find (figure 9)…can be read as showing that the introduction of the
employer's event on path 2 makes that path critical and causative of
concurrent delay” (para 291)
• Adyard, “agreed in cross examination that there was no actual delay, whether
viewed prospectively or retrospectively, caused by any of the design items”
(para 293)
• “I have already found, the project was already in irretrievable critical delay well
before June 2009”. (para 294)
THIS PAPER DOES NOT CONTAIN LEGAL ADVICE. THIS PAPER DOES NOT
PROVIDE ADVICE OR GUIDANCE, IT IS A DISCUSSION PAPER, AND IS NOT
INTENDED TO BE RELIED UPON.
THIS PAPER EXPRESSES A POINT OF VIEW OR POTENTIAL POINT OF VIEW,
WHICH OTHERS MAY DISAGREE WITH.
31
BIBLIOGRAPHY AND TABLE OF CASES
A History of Extension of Time, Robert Tustin 11,12,31

Keating on Building Contracts 5th edition , Vivian Ramsey, Sweet & Maxwell
1991 1
NEC 3 New Engineering Contract, NEC, Institution of Civil Engineers 12

FIDIC Red Book 1st edition, The International Federation of Consulting Engineers
1999 12
Society of Construction Law Delay and Disruption Protocol 2nd edition Society
of Construction Law 2017 6,8,9,31
The presentation and settlement of contractors' claims Geoffrey Trickey,
E.&F.N. Spon 1983 29
The Wrong Path, Robert Tustin 9,10,11,12,17,20,24,31
Use of Critical Path Method Techniques in Contract Claims: Issues and
Developments, 1974 to 1988”, (Source: Public Contract Law Journal Vol 18, No.2
(1988), pp 338-39) Published by American Bar Association
4,7,8,12
Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 (Comm) 9-12,31
Blackhawk Heating & Plumbing Co., Inc (1975) SBCA No. 2432, 76-1 BCA 11
11,649 7
Dodd v Churton (1897) 1 QB 562 2,10
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70
Con LR 32 30
Holme v Guppy (1836) 3 M. & W. 387 10
CM. Shupe, Inc. v. United States, 5 Cl. Ct. 662, 728 (1984) 8
Peak Construction (Liverpool) Ltd v McKinney Foundation Ltd (1970) 1 BLR 111
10
Percy Bilton Ltd v Greater London Council [1982] 1 WLR 794 10
Santa Fe Inc (1984) 4-2 BCA 11 17,341. 12,30
Roberts v The Bury Improvement Commissioner [1870] LR 5 C P 310 10
Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 2 AII
ER 260 10
32

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The Nonsensical Application of Critical Path Method to Extensions of Time December 2022

THE NONSENSICAL APPLICATION

THE TRUTH ABOUT CRITICAL PATH ANALYSIS REVEALED1

1. The principles behind extension of time

Most procurers of construction works want their project to be completed in a

Such ‘reasonable time’ might be hard to establish if the employer wants to

There’s also another way to look at extensions of time clauses:

This is (properly called) the prevention principle approach. It could also be

Damages period = Actual period – original period – extension of time for

And this is how a contract with an extension of time clause works.

2. Logically plausible alternative

Where Employer delay is not greater than Contractor delay: Damages

There are at least two problems with that approach:

6subject to the point made the footnote on the previous page

3. An attempt to frame the ‘extra-over’ approach as in line with critical

4. What a critical path analysis actually measures

“The sequence of activities through a project network from start to finish,

In other circumstances, it gives entitlement based on the ‘extra over’ delay

So the question which the paper presented by the American Bar

5. Other justifications given for critical path analysis / CPM

10 SBCA No. 2432, 76-1 BCA 11 11,649

An extension of time clause measures employer delay (beyond the contract

11 5 Cl. Ct. 662, 728 (1984)

assessment by its fundamental nature (see Section 1 above) measures Employer

12 or conceivably where truly independent of contractor delay, the latest of it

A justification which Justice Hamblen appears to have offered for taking a

15 (1836) 3 M. & W. 387

further above and in Appendix A). There seems to be no such justification,

“the contractor asserted that any work sequence or CPM path of

This is perfectly true, but it’s no justification whatsoever for actually

6. The additional costs to the construction and real estate industries

22 4-2 BCA 11 17,341.

extension of time assessment and associated wider attitudes towards extensions

APPENDIX A – ANALYSIS OF THE BASICS OF CRITICAL PATH METHOD

Starting Result (Employer

Total delay Employer Delay 'But Contractor Delay 'But Additional

EXAMPLE 23 SEQUENTIAL TIME

EXAMPLE 23 SEQUENTIAL EVENTS

EXAMPLE 24 SEQUENTIAL TIME

EXAMPLE 24 SEQUENTIAL EVENTS

EXAMPLE 25 SEQUENTIAL TIME

EXAMPLE 25 SEQUENTIAL EVENTS

EXAMPLE 26 SEQUENTIAL TIME

EXAMPLE 26 SEQUENTIAL EVENTS

As-planned, for examples 27-28:

EXAMPLE 27 SEQUENTIAL TIME

EXAMPLE 27 SEQUENTIAL EVENTS

EXAMPLE 28 SEQUENTIAL TIME

EXAMPLE 28 SEQUENTIAL EVENTS

ROBERT TUSTIN 11 DECEMBER 2022

APPENDIX B – CONFUSION OVER MEANING OF CRITICAL PATH

Whether this is a reference to the contractual completion date or the actual

The following explanation is provided:

APPENDIX C – THE CONNECTION BETWEEN THE ADYARD CASE AND THE

BIBLIOGRAPHY AND TABLE OF CASES

A History of Extension of Time, Robert Tustin 11,12,31

NEC 3 New Engineering Contract, NEC, Institution of Civil Engineers 12

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