Delay and disruption disputes are horrendously complicated, but there is a practical way to back up your claim – take regular photographs of the works from day one
a raft of well-intentioned documents have been produced in the past few years to help those who have to manage delay to projects and resolve related claims: textbooks, standard forms that have started to recognise that programming is an issue, programming software and even a delay and disruption protocol. But delay claims still happen and, unless my attention span is getting shorter, claim documents seem to be getting longer.
The industry’s emphasis should be on taking practical steps to manage delay and disruption, not on the technocracy and dialectic of experts. Less science, more practical stuff. The adage “garbage in, garbage out” is the universal law of delay analysis. No amount of keyboard jockeys and retrospective delay analysts will help if the evidence is not there to support the analysis. Which is where your camera comes into its own.
Evidence is always a big-ticket issue in delay disputes. Lawyers and experts end up having to trawl through reams of tedious, often irrelevant documents at vast expense. More often than not, documents do not even tell the full story because they need to be read properly and they are almost always open to interpretation. Put simply, when it comes to evidence, pictures speak louder than words.
Pictures – usually stills, often undated – are, it is true, frequently produced as evidence in delay disputes. Video can provide even more helpful evidence. It’s all grist to the mill. Unfortunately, I’ve seen sets of photos produced by both parties at the same time telling two completely different stories. Of course, if you’re careful about when you take photos, the workers will be doing something other than working, or on a well-earned tea break – and, hey presto, as a client you’ve made out a case that the builder is not making regular progress with the work.
Equally, a contractor armed with well chosen photos of what the nominated subcontractors are not doing can earn himself an entitlement to an extension of time and even money. Well, if the tribunal believes him. If an analyst then produces a retrospective delay analysis that bears little or no relationship to the evidence, it can all become very confusing.
All this uncertainty could be avoided if the industry was more systematic about how it uses technology. The technology is not new – digital cameras these days are relatively inexpensive.
So, if you’re taking photographs, do not wait until the project gets into difficulty; take dated and timed photos periodically from day one of the project.
Make sure it’s done often enough to be of value. Obviously, you will need to have established what precisely you are going to photograph. It does not really matter what time you take them provided that it is done regularly at the same time.
Perspective, as always, is important. The perspective must be sufficiently consistent to allow a dynamic picture of progress to be put together easily and cheaply that is readily comprehensible. Some thought will need to be given as to how to divide the project up into useful shots before the project starts. One long-distance snapshot twice a day on a big project will benefit nobody.
If you do want to supplement the ongoing pictorial record with extra material when something out of the ordinary happens or to demonstrate a particular problem, then do so.
The more pictorial evidence you have, the better. Third parties (including arbitrators and judges) will understand why you deserve that extra money or time. Just make sure the ongoing record continues to be maintained and, if the specific problem continues over a period, think about systematising the way you photograph that too.
The regime could even be agreed upon by client and contractor before commencement of the project and the cost and responsibility shared. That would be to everyone’s benefit. If I had my way, timelapse photography would no longer be the exclusive preserve of BBC wildlife programmes – it would be installed on all construction sites across the country. The result would be more certainty in delay and disruption disputes, and lower legal and expert bills. A no-brainer, if you ask me.
Nick Lane is a lawyer specialising in construction law at solicitors Travers Smith: email@example.com