Articles

Introduction

When projects are delayed and go into dispute, they are often referred to delay experts to provide an opinion on the cause and the impact of the delay events. The first challenge for these experts is to determine the method of delay analysis they will adopt. Many of these methods are described in the Society of Construction Law (United Kingdom) Delay and Disruption Protocol (2nd Edition). The selection of the most appropriate method is highly dependent on the information that is available to the delay expert, not to mention the expert’s own preference.

This article is the third in a series of three articles, that cover:

1. The importance of getting to an accepted programme;
2. Monitoring project progress against the accepted programme; and
3. What to do when delay claims cannot be resolved.

In the first two articles, we discussed the importance of establishing an appropriate accepted programme and the importance of monitoring progress against the accepted programme. Information, or the lack of it, is one of the significant challenges experts face when reviewing delay claims that are in dispute. In this article, we will discuss the role of the delay expert and the importance of how the delay expert is briefed.

Advocate or Independent Expert

Delay experts can be engaged as either an advocate or an independent expert.

For clients and law firms who are engaging and then briefing delay experts, they need to understand the role to take, being either the advocate expert or the independent expert, as it can have an impact on the information presented and considered; and it can have an impact on the relationship between the client and expert.

An advocate expert will work with their client to help identify and frame delay claims to their client's advantage, including counter claims. For a contractor (or subcontractor) this will be to maximise the claim to either minimise exposure to liquidated damages or maximise delay cost variations. For a principal (or head contractor) this will be the opposite; that is, to minimise the claim to either maximise the exposure to liquidated damages or minimise the delay cost variations. Having these opposing approaches often presents a challenge, particularly when the advocate expert and their client are working to maximise their advantage and not seek resolution to the matter in dispute.

An independent expert will work with their clients to identify and provide an opinion on delay claims as per the requirements of the contract. The independent expert’s duty is first and foremost to the Court/tribunal. Their role is to provide their opinion on the delay using their expertise and the information presented to them. This often presents a challenge to clients who find the independent expert is “not looking after their interests” when considering delay claims and therefore they can struggle at times with the justification of the engagement of the independent expert.

One also needs to be careful in engaging an expert in an advocate role first, and then, as the dispute evolves, engaging them in an independent role. To be brutally honest, it should not occur, as it can place both the client and the expert in the difficult position of needing to change, sometimes substantially, their opinion on certain matters.

For complex matters, there can be a benefit in engaging separately both an advocate expert and an independent expert. The former can work with the client in terms of identification and testing of delay claims, gathering information and developing the strategy going forward while allowing the independent expert to provide their opinion on the delay matter based on the facts presented and considered for the benefit of the Court/tribunal.

Briefing the Expert

Once it has been decided if the expert will be an advocate or an independent expert, the second next important step is the instructions of the briefing provided.

There are typically two types of briefs.

The first type of brief will be quite specific with a very pointed, often well considered, question. For example, the question might be to provide an opinion on the number of days of delay to completion caused by a specific event, or; it might be to provide an opinion on the appropriateness of a delay methodology adopted by another expert. Subject to the supporting information provided, these briefs are relatively straightforward to respond to and usually indicate that the briefing client and lawyer have a clear strategy in mind.

The second type of brief is much broader and will have very little in terms of a specific question(s) and will ask the expert to consider the information provided for discussion. Then, once that discussion is had, a further brief with more pointed, specific questions will follow. These types of briefs are generally a little more complex to respond to and generally indicate the matter being considered is also complex and the way forward is not clear.

Notwithstanding what type of brief is presented, the key to both is the supporting information that is made available with the brief. This information is highly dependent on the appropriateness of the accepted programme, if one exists at all, and how well that programme has been monitored.

How the Available Information Influences Delay Methodology

The Society of Construction Law (United Kingdom) Delay and Disruption Protocol (2nd Edition) identifies six (6) methodologies for the assessment of delay claims. Which methodology to be adopted is highly dependent on four key aspects; which are:

• The provisions in the contract;
• The suitability of the project programmes;
• The suitability of progress information, including contemporaneous correspondence and other records; and
• The familiarity of the expert with the methodology.

The delay claim expert will need to decide which is the most appropriate method based on the contract provisions, the information available and the information they are able to prepare, such as an as-built programme, based on the information available. The intention should be to take some of the ambiguity and bias out of the methodology selection process, ensuring a more robust approach. Interestingly, if all parties properly prepare and maintain their programmes, progress records and notifications, all delay assessment methodologies would be appropriate where both prospective and retrospective delay analysis is allowed under the contract. Arguably, if all parties had properly prepared and maintained their programmes, progress records and notifications; they would most likely not be in dispute.

As you would expect, the less information there is available will require the expert to adopt a more theoretical methodology. Theoretical methods are more difficult to substantiate, making them more open to scrutiny and challenge by opposing parties. Discovery is the only saving grace in this scenario as both parties should face the same issue when substantiating their claim. This is because both parties should have access to the same information, and therefore, should be selecting the same, if not similar delay methodologies. In this instance, the difference between the two experts will be based on their expertise and experience in understanding planning theory, such as the critical path method, the delivery method (comprising both commercial and technical aspects) and the interpretation of facts.

Some Lessons Learnt Concerning Delay Matters

Over the three articles in this series, we have discussed the importance of reviewing and reaching an agreement on the accepted programme, the importance of regularly monitoring the progress of the works and keeping appropriate records of such progress and the importance of appropriately briefing the delay expert when matters of delay go into dispute.

To avoid dispute, or if a dispute occurs and to minimise the effects of dispute, we recommend the following be considered when preparing and administering contracts:

• The contract includes a clear description of the required format and content of the programme to be provided.
• For complex projects, the provision of a basis of a programme that describes the underlying methodology and key allowances and assumptions relied upon when preparing the programme.
• The provision of a native version of the programme file.
• For complex projects, a third party review of the programme by a programming expert, before it is taken as the accepted programme.
• If the programme is not accepted, then documented reasoning has been shared with the other party on why the programme is not accepted.
• Regular monitoring of progress, no less than once per month, which is measured against the accepted programme and contract milestones.
• Keeping of progress and status records including daily diaries, weekly reports, monthly reports, photographs and videos.
• Issue of and timely response to contractual notices as per the requirements of the contract.
• If a delay expert is required to be engaged, be clear on their appointment as an advocate or an independent expert.
• Being clear on what information can and cannot be provided to support the expert in their selection of the delay methodology and their assessment of the delay.

We have purposely not addressed clauses concerning qualifying causes of delay, notification periods and delay compensation, as these should be considered along with the scope of the project, the environment and the risk allocation between the principal and the contractor for the specific project. We hope, however, that the key points above assist organisations in avoiding, and if not better preparing for, delay disputes.

Contributed by:

Grant Axman-Friend - Managing Director, Core Project Advisory