Practical Law

At a recent conference, I was asked to sit on a panel to discuss time and money claims.  Each panellist was asked to give a short talk on the subject from the perspective of our backgrounds, and I therefore gave mine from the tribunal’s perspective. Given that I only had ten minutes, I focused on practical tips for assisting the tribunal when making or defending a time or money claim.

While many of the tips were quite obvious, it’s surprising how many time and money claims fail due to a lack of appreciation of the basics, so I thought I’d share some tips concerning extension of time claims.

When the referring party claims an extension of time

Let’s start with tips for a referring party claiming an extension of time in an adjudication. It should:

• Explain the delay events with reference to contemporaneous evidence. The tribunal will not be persuaded that you are entitled to an extension of time by simply presenting an as-planned and an as-built programme. There needs to be an explanation of the delay events, which:
  • is probably best presented either in the referral narrative or a witness statement. Either way, it should be explained by a member of the site team who knows the project inside-out, and not by a director who was sat in a cosy office while the events were unfolding;
  • must be cross referenced to contemporaneous evidence such as plans and meeting minutes. It’s also surprising how useful photographs can be for the adjudicator who is unlikely to have visited the site;
  • must focus on the events that caused critical delay (that is, delayed the works beyond the completion date). I’ve had reams of evidence regarding events, but when I’ve questioned the referring party at the meeting, it has acknowledged that only a few resulted in critical delay. This is a waste of everyone’s time.
• Use expert delay analysis evidence where necessary. Such evidence is likely to be essential on large and complex projects in order to demonstrate critical delay to the adjudicator.
• Choose the right expert and right delay analysis technique:
  • you want the adjudicator to believe that your expert knows his stuff when it comes to planning projects, and so you should choose an expert with experience of managing projects. Otherwise, you risk the adjudicator forming the view that the expert is merely an expert in the use of the delay analysis software;
  • the expert could be an employee of one of the parties, provided they understand their duties to the adjudicator. For example, in Skanska Construction v Egger (Barony), HHJ David Wilcox preferred the evidence given by an employee and stated that he was “…objective, meticulous as to detail, and not hide bound by theory as when demonstrable fact collided with computer programme logic…”;
  • the right technique will obviously depend on the evidence available. For example, if there is no as-planned programme then the as-planned impacted technique will have to be ruled out.
• Not be over reliant on expert delay analysis evidence. The courts have been critical of such an over-reliance (as the above quote suggests!).
• Test the submissions and evidence. While it’s not always practical, try and get an experienced adjudicator to review the claim before it is submitted. He may be able to point out gaps that should be filled to assist the adjudicator in understanding the claim.

What about the responding party?

Some of the same tips apply to a responding party attempting to defend an extension of time claim in an adjudication, but some specific tips include:

• Putting forward a positive case as to the cause of the delay. While I appreciate that the responding party can limit itself to attacking what the referring party says caused the delay, I certainly find it helpful if the responding party sets out what they say actually caused the delay (that is, a positive case).
• Using expert delay analysis evidence where necessary.
• Using the same delay analysis technique as the referring party’s expert. I appreciate that the responding party’s expert might be of the view that an alternative technique is much more suitable and, if that’s the case, this alternative technique should be used. However, if there is a choice, it will certainly assist the adjudicator if the same technique is used.
• Not relying on the referring party’s lack of expert delay analysis evidence as the sole defence, as the adjudicator might well find that an extension is due regardless of the lack of such expert evidence. For example the adjudicator doesn’t need a colourful delay analysis to that which can be reached using common sense, e.g. that the frame couldn’t be completed if the piling had only just started.

To end, it is worth restating what Lord Osborne said in City Inn v Shepherd Construction:

“…the decision as to whether the relevant event possesses such causative effect is an issue of fact which is to be resolved, not by the application of philosophical principles of causation, but rather by the application of principles of common-sense… the decision-maker is at liberty to decide an issue of causation on the basis of any factual evidence acceptable to him. In that connection, while a critical path analysis, if shown to be soundly based, may be of assistance, the absence of such an analysis does not mean that a claim for extension of time must necessarily fail.”

In my next blog I will be going back to basics with money claims.