We learnt from Fun Boy 3 and Bananarama that “it ain’t what you do it’s the way that you do it… and that’s what gets results”. But how, you might wonder, does that help us enter the arcane world of delay analysis?
I went to a seminar last week on City Inn v Shepherd and learnt much the same thing as Bananarama taught us from one of the speakers – Alan Whitaker – who was Shepherd’s expert witness. Alan’s view was that he had to “get into what the project was all about” and, according to the judge at first instance, he did precisely that:
“I generally prefer the approach taken by Mr Whitaker. His views… appeared to me to be based on the factual evidence. Moreover, his method of proceeding appeared to be based on sound practical experience and on common sense…”
The Court of Session agreed and its decisions have been widely-reported.
Some commentators say that the case will go to the Supreme Court and that the questions of law on causation (dominant or otherwise), concurrency, apportionment, critical path analysis and similar should be solved “once and for all”.
I suspect not. I think that there is a more interesting and more fundamental point here to which the judges make constant reference at all levels in City Inn (this is from the Inner House of the Court of Session):
“…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.”
There has probably been too great an expectation that the law will decide that there is a “right way” and a “wrong way”. There are a number of analytical tools available to parties, including critical path analysis and the dominant cause approach. All of these tools have their strengths and weaknesses, and those strengths and weakness will be of varying degrees of importance depending on the underlying contractual position, the available evidence and the nature of the claim.
The underlying approach taken in City Inn is that the court must first look to see what the contract says about the way the entitlement arises and how claims should be made. Once those hurdles have been passed, it is for the claiming party to prove its case, using whatever analytical tools are appropriate to the particular circumstances. But those circumstances vary and trying to find a one-size-fits-all analytical method is a distraction.
With the possible exception of what the judges said about apportionment (and my thoughts here are of similar law on contributory negligence and joint liability in tort), perhaps the general point of law is that there is no general point of law. City Inn affirms the need to prove entitlement under the applicable terms of the contract in a way that, on a balance of probabilities, satisfies the burden of proof.