In so far as there can be trends among construction lawyers, it is, “trendy” to question whether delay is an area of “expertise”. Whether or not you use the evocative term “expert” or stick to my preferred, “analyst”, it is interesting to explore why the area of delay evidence is contentious and engenders so much frustration for those involved in construction disputes. My view is that this due to a mismatch of expectations in what is being offered.
Shrouded in mystery?
There is a mystery to delay analysis by virtue of the complex scheduling software, the endless programmes and diagrams, and some industry jargon. Lawyers, blinded by the mystique and typically shy of anything diagrammatic, may fall into the trap of sending delay analysts away with boxes of documents and no further instructions. They may hope that the analysts will magically generate an answer to inform a case theory, only to be frustrated when the end product does not match their expectations.
What does the tribunal require?
Courts and tribunals are often faced with the situation where competing delay analysts, proffered as independent experts, come to the same set of objective facts and generate entirely different answers based on different theoretical frameworks, methodologies and critical paths. Recently, some courts and tribunals, apparently becoming increasingly sceptical of highly theoretical approaches to delay, have preferred to undertake their own examination of the facts. This is hugely frustrating for the delay analysts, lawyers and particularly clients who have spent large amounts of time and money to produce delay evidence only to have it disregarded.
In Walter Lilly & Company Ltd v Giles Patrick Cyril Mackay and another, Akenhead J carried out his own analysis and assessment of what actually caused the overall delays in a project. He said:
“In so doing, I will proceed on a month by month assessment because both experts accept that this would be relevant and helpful. As a tribunal, let alone a delay expert, one has to get a handle on what was delaying the project as it went along.”
He had previously commented that “[t]he debate about the ‘prospective’ or ‘retrospective’ approach to delay analysis was also sterile because both delay experts accepted that, if each approach was done correctly, they should produce the same result”. He was also critical of the subjective approach taken by one of the delay experts, noting that it is not for the expert to make statements as to whether he believes the other side has demonstrated this or that, or made out its case; that is for the tribunal to assess.
It seems to me that better communication is needed to demystify the process and ensure that all participants work towards a solution that can be sensibly used to assist dispute resolution. Delay analysis can add considerable value in this regard, but perhaps a few ground rules are needed:
- Separate matters of law from matters for delay expertise. Take questions such as:
- whether to use a retrospective or prospective analysis:
- when an extension of time should be calculated;
- what constitutes a concurrent delay; and
- whether extensions of time should take into account what subsequently occurred on a project.
These are legal questions. They should be a matter of interpretation of the agreement between the parties and form part of the legal submissions. While delay experts can offer a sensible view based on their experience of particular contracts, these questions should be considered and discussed with the legal team from the outset, before any delay analysis is carried out.
- Decide who is best placed to navigate the factual matrix of the dispute. Construction disputes are highly fact intensive and must be properly investigated and understood. Huge costs are incurred by delay experts carrying out their own detailed factual investigations in parallel with the lawyers. If they have not had the benefit of contact with the factual witnesses or technical experts their understanding of the facts may be incomplete or incorrect.
While both lawyers and delay analysts are capable of undertaking the investigation, duplication should be avoided and, to this end, communication is key. Regardless of who is the principal investigator of fact, the delay analyst must work with the factual witnesses to test the programme logic links and durations, so that their analysis is robust under cross examination.
- Understand the software and its output. Both lawyers and delay analysts need to understand how software will be used and the answers it generates. Regardless of who determines the facts, expertise is needed to:
- use scheduling software as a tool to present the impact of the delays and the interaction between multiple causes of delay;
- understand how to use the software differently for a forensic analysis as opposed to project management; and
- understand how any assumptions are input into the programming software and to challenge the data produced.
However, such expertise needs to be in the hands of both the lawyer and the delay analyst to ensure data is used correctly. There should not be any mystery in answers produced by the software that are not supported by a common sense understanding of the project.
- Explain things in plain English. Delay reports need to clearly identify and explain relevant terminology, the methodology used, any assumptions in the analysis and discuss (in narrative form, for word obsessed lawyers) what the programmes are demonstrating in terms of impact of particular delays. Lawyers and delay analysts must work together to make sure any report does this.
Delay analysis is a valuable tool in the dispute resolution process, but it needs to be managed with collaboration and understanding so that courts and tribunals are provided with something that assists them in navigating the facts in order to resolve the dispute.