The Great Delay Analysis Debate

The Great Hall at King's College, London on the Strand was the imposing setting for a novel and stimulating event organised by the Society of Construction Law and the Centre for Construction Law and Management on 18th October.

A full house of over 250 leading quantity surveyors, claims consultants, lawyers and other construction professionals were given a fascinating comparison of the different techniques for assessing the position and entitlement of contractors and owners in the event of delay. Chairman, Dr. Julian Critchlow gave the history of the unhappy project, in which work had come to a standstill in exceptionally bad weather when the contractor's water pumps broke down and the excavations collapsed. The employer meanwhile had asked for redesign of waterproofing and instructed the use of a proprietary product, which was delivered late and took longer to apply than the contractor had allowed. A whole range of other mishaps occurred, from an alleged error in the setting out, resulting in a need for additional excavation and backfilling, to late release of the reinforcing bar bending schedules. Despite weekend working by the contractors' reinforcement fabricators, work finished seven calendar days after the contractual completion date.

Alastair Farr, representing the contractor, argued for the ‘as planned impacted' approach which would not only put his client in the clear, but would give rise to a substantial claim on his behalf.

Opposing this, on behalf of the employer, Steve Briggs adopted the “As planned versus as-built' method, which showed the contractor to be in serious trouble, and facing the imposition of liquidated damages.

The engineer, in the shape of John Hammond, agreed with neither Alastair nor Steve and proposed to deal with the dispute which they referred to him using the ‘as-built but-for' test. Since this left neither party satisfied, the matter was referred to adjudication. Julian Critchlow, doubling as adjudicator, had called on an advisor, Keith Pickavance, who recommended the ‘time impacted' method.

The audience then voted on the motion ‘This house considers that the ‘time impacted' method is the most appropriate technique for the analysis of delay in construction disputes'. The motion was defeated.

The respective experts were then given a further opportunity to carry on the debate, attacking the other methodologies and advocating their own. The audience, acting as an arbitral tribunal, still defeated the motion, although now by a significantly smaller majority. However, when asked in turn which of the four methods they favoured, none could command a clear majority and each had a loyal band of adherents.

The Great Delay Analysis Debate was voted a huge success by those attending. The re-run for the benefit of a substantial waiting list and others who missed out in October is already sold out.