If you want to win a delay claim, it is crucial that the court approves of your choice of delay analysis - but how are you supposed to know which technique is ‘right'?
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 my article on 2 December 2005 in www.building.co.uk/archive).
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.
So 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 thought 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 as-planned 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.
There is a school of thought that says that delay is simply a matter of fact, and that as such delay experts are superfluous
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 comes closest to the way a court might look at delay disputes. But there is scant judicial comment on it in UK decisions.
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.
Then again, 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.
Frankly, it is high time someone got a grip on all this. There is a ray of light. Recently judges 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 the techniques of delay analysis. I, for one, hope this happens as it would put an end to the sort of navel-gazing this subject encourages. In the meantime, the debate goes on - I hear the experts will be battling it out again at another SCL event planned for next month.
Nick Lane is a construction lawyer at Travers Smith: firstname.lastname@example.org