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How to be good1

stMarch 2006

WHY CANT THE INDUSTRY DECIDE WHICH TYPE of delay analysis to use in delayclaims? Heres an example of the confusion. Back in October last year, the Society ofConstruction 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 maintechniques see previous paper Listen, this is important.

A show of hands before and after the debate defeated the motion. Sizeable chunks ofthe audience voted for each of the techniques, going against the SCLs 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 knowwhich technique to adopt? One thing is clear the industry is not using time impactanalysis across the board. Instead, there is much eclecticism. What people want isconfidence: the technique they choose will find favour with the other side, and this isthe 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 opento a judge to reject the parties analyses even complicated technical analyses producedby independent experts with impeccable credentials. There is a school of though thatsays 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 analysisby reference to his findings of fact. However, this does not give full credit to the potentialcomplexities 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 oftenfeatures in adjudications. This technique is only appropriate in low-value disputes or

adjudications where time does not allow better analyses. There is no judicial guidanceon whether it should be used and, if so, how.

In Barker Construction vs London Portman Hotel (1997) the judge accepted an as-planned impacted analysis. As far as he was concerned, all the expert had to do wasperform 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 Eggers expert was rejectedby the judge, who favoured Skanskas simpler approach despite the fact that it was anin-house analysis and was not independent.

In relation to as-built-but-for-analyses, this technique would come closest to the way acourt might look at delay disputes. But there is scant judicial comment on it in the UKdecisions.

Other factors to consider when deciding on the right technique are:

The contractual requirements in terms of proof of entitlement. The nature of the evidence available. The amount claimed.

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So, if the contract only makes provision for extensions of time where actual rather thanlikely delay has been caused, how appropriate will an as-planned impacted or timeimpacted analysis be? Arguably not at all, because these techniques look at likely ratherthan actual delay. If the contractors programme was unrealistic, there will be littlechance of persuading a tribunal that an as-planned impacted analysis is appropriate.

Then again, how big is the claim? A court looks at proportionality when decidingquestions of costs and if the cost of an analysis is not proportionate to the amount indispute the cost may not be recoverable.

Frankly, it is high time someone got a grip on all this. There is a ray of light. Recentlyjudges at the TCC have been prepared to survey the relevant law and consolidate it.When a delay claim next comes before the TCC the judge might survey the law on thetechniques of delay analysis. I, for one, hope this happens as it would put an end to thesort of navel-gazing this subject encourages. In the meantime, the debate goes on Ihear the experts will be battling it out again at another SCL event planned for next month(March 2006).

Nick Lane

Postscript:Nick Lane is a lawyer specialising in construction law at solicitor Travers Smith:nicholas.lane@traverssmith.com