How should delay be analysed and what options are available? Tom Francis examines…
When a delay occurs on a project, analysing cause and effect is vital to understanding where liability lies. Delay analysis (sometimes called Forensic Planning) is something which some refer to as a ‘dark art’. Arguably because it’s often misunderstood by those who carry it out or claim to understand it. This article aims to set out some of the key elements to consider when undertaking an analysis or working with an analyst to demonstrate delay.
Firstly, you need to know that there are many different methods of delay analysis available. There are at least six, arguably more, depending upon who you speak to.
But how do you know which is most appropriate for your project and where do you start?
For acceptance by the courts or a tribunal, an analysis should use a logical, methodical and calculated method of assessment. However, there is still no ‘best method’. No single analysis applies to every dispute. Tribunals have differing views on the best approach to take.
A number of factors must be considered. These include:
- The circumstances of the dispute
- The contract provisions for Extension of Time
- The type of delays experienced
- The records available.
Timing is everything…
The first thing to establish is the timing of the analysis. Do you need to use a prospective (looking forward to what will happen) or retrospective (looking back at what’s happened) method?
A prospective analysis such as ‘Impacted As Planned’, or ‘Time Impact Analysis’ is often used whilst the project is still ongoing. This can help assess the impact a delaying event will have on the future completion date. Prospective methods can also be used on completed projects. However, extreme care should be taken when doing so to ensure the ‘theoretical’ prospective analysis corresponds with the ‘actual’ facts.
Should the works be complete, a retrospective method of analysis is often preferable. Examples of the titles of these include; As Planned v As Built Windows or Timeslice Windows. At this point in time the length of the delay to the completion date is known. You should also have access to as-built information, allowing you to assess impacts to the ‘as-built’ critical path(s).
Tribunals are tending to move towards a preference for retrospective methods when dealing with delay analysis in post-completion disputes. The SCL Protocol also now adopts this preference for retrospective methods of analysing delay when the works are complete.
The next point to consider is the complexity of the project and the dispute. Sometimes a simple analysis is enough to explain the delays suffered and the liability for each.
When a dispute is complex, it’s important to keep the analysis and report documents succinct and at a reasonably high level. Remember to keep the main narrative simple and easy to understand for a layperson. This is a crucial role of a delay expert. However, it remains critical to include detailed supporting information in clear appendices. Much like approaching a maths exam, it’s crucial that the working out is made clear and understandable.
Equally, a complex delay analysis would not be worthwhile on a simple dispute. The time and cost associated with a complex delay analysis might not be proportionate to the value of the dispute in hand.
When conducting your analysis, whichever method you choose, remember that facts are king (or for balance, queen).
In a future article we’ll cover the elements required for a successful Extension of Time claim. We’ll look at what needs to be demonstrated to prove delay to progress or completion of the works.
 John Barker Construction Limited v London Portman Hotel Limited (1996) 83 BLR 31 https://swarb.co.uk/john-barker-construction-ltd-v-london-portman-hotel-ltd-1996/
 SCL Protocol Delay and Disruption https://www.scl.org.uk/sites/default/files/SCL_Delay_Protocol_2nd_Edition.pdf
 SCL Protocol Delay and Disruption, Core Principle 11: ‘Analysis time-distant from the delay event’