We’ve said it before, and we’ll undoubtedly say it again: Delay analysis is often seen as a ‘dark art’. But it needn’t be so.
Whatever method is being used to analyse delay (something outside the scope of this article) there are a few things you need to establish for a successful delay claim.
Let’s take a look at three of them:
Entitlement – has a delay occurred that is the other party’s risk?
For this first item, you may need a lawyer. Contracts can be incredibly complex and interlinked documents, with clauses cross-referring to other documents and other clauses in the contract. Whether you’re entitled to compensation in the form of money or time will very much depend upon the nature, content, and interpretation of the contract.
Standard form contracts may allow for an Extension of Time, and compensation in the form of damages (for certain delay events but not all). Some will allow for neither, or be modified as to make things ambiguous. This is why solicitors are important. A good solicitor will work with you and your team to examine what the contract actually means. They will also be able to identify alternative interpretations.
Item two: Demonstration of Cause and Effect:
This is something which many people find challenging. It’s so important that Keith Pickavance’s substantial book on the subject devotes an entire 100-page chapter just to the subject of Cause and Effect. 100 pages which we recommend you read if you have time.
Often folk look at a project and say, “the project should have finished on x date, but it finished on y date, so we were delayed by y-x by the other side”. But this isn’t necessarily correct.
It’s essential to be able to demonstrate precise cause and effect. As everyone reading this will appreciate, construction projects are complex. Even the simplest project will encounter any number of delays. Possible asbestos on site, late delivery of materials, delayed issuance of drawings or instructions, variations to design. Any number or combination of these factors may have an impact on progress. But only some will impact completion. Or maybe they all impact completion.
The following three questions may help with identifying cause and effect:
- Is there an effective cause?
- Is the suggested cause based on fact?
- Has common sense been applied?
A good delay analyst will be able to separate different causes and identify their effect upon progress or completion. A delay analyst should be able to identify “scientifically” the right method of analysis (see our previous article). The analyst will then trace an evidential link from cause to effect and separate out activities which have had a critical impact upon the programme. The demonstration of a factual cause is important, it must be possible to substantiate claims with facts.
Whilst the usual approach is to consider cause first and then effect, many of the methods advocated by the Society of Construction Law Protocol now look at analysis the other way around. Calculating the effect of delay first and only then considering the cause is in many ways the preferred approach for ‘retrospective’, after the event analysis.
The alternative to separating cause and effect is the ‘global’ approach. In this, all delaying events are lumped together to show that they all contributed to the overall delay. This is discouraged by the Society of Construction Law Delay and Disruption Protocol. Although acceptable, it is frowned upon by the courts.
The subject of global claims has been discussed at length in cases such as Walter Lily v MacKay, John Sisk v Carmel Building Services and John Doyle Construction v Laing Management. In most cases, the courts suggested whilst such claims are not unacceptable, they still require the contractor to demonstrate their case clearly. It is essential to prove the contractor could have reasonably completed the project but for the interference of the other party.
Item Three: Records:
This is one of the most neglected and difficult areas faced by delay analysts. We frequently come across situations where a strong claim and good potential analysis is made impossible by a lack of records. The importance of keeping good, accurate, clear and structured records cannot be overstated. Particularly for the production of a good and useful delay analysis.
The required demonstration of cause and effect cannot be achieved without good, structured records. It seems that human nature is to assume that everything is going to be fine. Constraints on budget, time, etc all conspire to lead to the poor management of construction records. Only too late do people realise the importance of the late, great Max Abrahamson’s mantra of the importance of records.
There are several guides to what records should be kept and how. The SCL Protocol gives some guidance and examples, as does the CIOB guide to Time Management. There’s also a useful article from Herbert Smith here.
Conclusion, find out more…
There are many factors that go to make up a good delay analysis, but the above three factors can help to ensure a greater chance of success. To find out more, join us for our next seminar – see here for more details.
 Pickavance, 2010, p.838