In this Part 2 of my article on delay, I cover what the courts look for in terms of the four key elements of delay analysis and tips on how to improve chances of success.
There are four key elements in delay analysis that the courts must be satisfied of:
- There must be a discernable nexus between the event alleged and the consequent delay. However because construction claims are complex, it is difficult to prove that a particular breach has caused a particular delay
- There must be proof of causation. What is causation? The courts have said “causation is a mental concept, generally based on inference or induction from uniformity of sequence as between two events that there is a causal connection between them.”
- The court decides whether the event was the cause of the delay by using common sense.
- There must be a fundamental understanding of the legal and evidential burdens of proof and how they are discharged. In delay cases the standard of proof is satisfied on a balance of probabilities.
So, how can a successful claim be presented? It is all about the evidence and there is a hierarchy.
Delay is a question of fact, not a question of law. The best evidence is direct evidence. In many cases there can be some factual proof by witness evidence and this should be used.
Then there is indirect evidence. If relying on inferences that the event caused the delay, a party needs to carry out a proper analysis of the facts by establishing the scope and extent of the event/complained and what the immediate effect was. Then there is use of the contemporaneous documents and records.
Finally, there is the opinion evidence used to support all of the above.
A claimant generally needs to demonstrate critical delay caused by the events complained of. Critical delay is usually assessed at the end of the project. As to presentation, it is generally unwise for a party to adopt an approach which keeps everything in just in case. A better approach is to adopt a bolder and more analytical approach to the key issues.
What about tips for improving the chances of a successful outcome?
- A party may present its case as it thinks fit. A court will require a party to spell out its case, and where the case depends upon the effect of an interaction of events, to spell out the nexus in an intelligible form. Being able to summarise the delay claim on one sheet of paper or in a logical schedule helps.
- Carry out a proper analysis of the facts to prove cause and effect, preferably directly rather than by inference.
- It can be helpful if the claim is divided up into discrete parts eg, areas of a project, particular activities or trades or particular time periods.
- A computer generated analysis that just shows an end result is a dangerous approach. All analyses are based on assumptions and to avoid the analysis being worthless (if a major assumption is wrong) make the analysis transparent and sensitive to any assumptions. Facts analysed must be apparent and explainable for the same reason.
- Computer generated analyses are useful provided certain steps are taken:
- Get an agreed as-planned programme and actual as-built programme.
- The programmes should take into account any changes in resources or in logic.
- Include narratives.
- If necessary provide a revised as-planned or as-built to reflect what occurred and logic changes.
- It should be remembered that computer generated analyses are merely tools and are to be considered with other evidence. The evidence of programming experts may be persuasive.
- A programming expert who fails to use accurately updated schedules and logic changes or fails to assess the delays of his own client, risks having his evidence disregarded.