This paper looks specifically at methods of preparing delay analyses and not at issues such as the granting or otherwise of extensions of time, culpable and/or concurrent delay or interference.

THERE are a number of methods of preparing ‘delay’ claims which all involve, to a greater or lesser extent, an analysis and visual depiction (programme) of the causes of the delay to the project. Such programming methods include:

• Dominant cause – Involves identifying the cause(s) most likely to have resulted in delay.
• But for – Based on the premise that ‘but for’ the employer’s interference, the contractor would have finished on time.
• First past the post – Where the employer’s and contractor’s delays assessed separately and offset against each other. Liability is limited to that period beyond the other party’s cumulative delay.
• Adjusted as-planned – Where delays are input into the planned programme to provide a notional view of overall delay.
• Collapsed as-built – Events are analysed for responsibility and tagged on to the end of the affected activity.
• Planned vs As-Built – A comparison of planned and actual programmes involving a recreation of events based on what actually happened ("retrospective analysis").
• Time impact analysis – A detailed analysis of the planned intent, resources and actual events resulting in allocation of responsibility and detailing the effects of delays involving a more detailed retrospective analysis.

This paper is primarily concerned with what the courts have said relating to programming techniques in support of delay claims. The details of each technique and their relative merits are not considered here. The following cases provide some assistance in deciding the programme format for presentation of a delay claim.

Fairweather v. L.B of Wandsworth
(1987)
This case from the Official Referee’s court (now the Technology and Construction Court) indicates that the dominant cause technique of delay claim presentation is incorrect.

South Australia v. York Montague
(1996)
In this House of Lords case, doubt was cast on the proposition that ‘but for’ the employer’s interference, the contractor would have finished on time as an appropriate test for establishing liability.

Turner Page Music v. Torres Design
(1997)
The judge in this case expressed a preference for the dominant cause test for establishing liability over that of the ‘but for’ test.

McAlpine Humberoak Ltd v McDermott International Inc (1990) 24 Con LR 68, (1992) 58 BLR 1
In this case, the claim format was described as a "retrospective and dissectional re-creation" ("retrospective analysis") of the project. The judge at first instance described this method as unhelpful, artificial and ultimately of no particular use in eciding how delays had actually been caused. However, the case went to appeal and the court approved the programming technique as being just what the case required. This case therefore supports the use of retrospective analysis as a programming technique in the preparation of delay claims.

Briefly, the procedure involves the preparation and comparison of planned versus as-built programmes and tracing the critical path through the project from what was planned to what it became. It is important that the critical path logic is established and shown so that the effect of actual events can be tracked. This will involve the insertion into the planned programme of each event (variation, change in sequence, prolongation of activities etc.) at the time and in the sequence it occurred to produce the asbuilt programme. By analysis of the actual events, those that delayed the completion date of the project should become clear. This technique should allow the effect on the completion date to be shown and described for each delaying event. It would seem that this case supports both the Planned vs As-Built and Time Impact Analysis methods of programming.

Wharf Properties v Eric Cumine Associates (1991) 52 BLR 1
This case is often cited as the case that gives rise to the requirement to link cause and effect because the claimant’s case was struck out on the basis that the case against the defendant was not clear and so no proper response could be given. However, the judgement that the statement of claim was "embarrassing" to the defendant was based on the facts of this particular case.

Bovis Construction Ltd (1992) 32 Con LR 90
Although this case was before the Civil Procedure Rules were enacted (Woolf reforms), it was stated that it is a requirement that a case is properly pleaded which is a question of degree in each case.

John Barker v London Portman Hotel
The conclusion in this case was that a logical and methodical approach is required when assessing a contractor’s entitlement to an extension of time so that delays to the completion date caused by the employer could be identified. Any application of judgement in the formulation of the delay claim should be fair and reasonable. In this case, the Architect could not show a logical and methodical approach to his assessment of an extension of time and so his assessment was flawed.

Bernhards Rugby Landscapes v Stockley Park (1997) 82 BLR 39
Notwithstanding the Wharf case, it was stated in this case that the power to strike out a claim is limited. Three principles were formulated with respect to how claimants should present their claim. Those principles are:
1. A party is entitled to present his case as he sees fit (without interference from the court) provided the defendant knows the case against it.
2. The court must, in order to ensure the principles of natural justice are followed, require a party to spell out its case with sufficient particularity. Where the case is based on the interaction of events (cause and effect) then the claimant should clearly identify the nexus in an intelligible form.
3. What is sufficient particularity is a matter of fact and degree in each particular case. However, the factors involved include a balance between excessive particularity and portrayal of basic information, cost effectiveness and the contemporaneous information available.

In some respects, this case has clarified the requirements stated in the Wharf case by setting down a set of principles which confirm the requirement to show cause and effect within the new confines of the Civil Procedure Rules.

Other than the comments in the McAlpine v McDermott case, there is no real guidance from the higher courts into the degree of proof or particularity claims and in particular the programming method invariably required to support such claims. It could be said therefore that the law remains uncertain in this area.

Practicalities
Despite the limited guidance from the above cases, there are a number of practical considerations that can be discerned from these cases (and the wider debate on delay claim formulation) in the approach to and method of preparing programmes in support of delay claims.

The term given to the method outlined below is Time Impact Analysis (a term coined in America).

The planned intent and original order/sequence of activities should be demonstrated (Network Analysis).

The allocated resources should be assessed to ensure and show that the original planned intent was achievable.

The relative importance of different delaying events should be determined and these then inserted into the programme having regard to what had been planned and what in fact happened.

The programme should be rescheduled after each event has been inserted so that the effect of the next event interacts with the programme, as it then would have stood. The cumulative effect and interaction of events can then be determined.

All events should be shown whatever their perceived or alleged cause including any actions in respect of mitigation. This is the "warts and all" approach.

Events should be inserted in the order/sequence they occurred.

Milestones to be achieved before proceeding to the next activity should be determined and shown.

Concurrency of events should be shown (usually the events are not concurrent but effects of those events are concurrent).

The critical path and how it changed with time and events should be shown.

For delaying events, the delay to any section of the programme should be shown as well as its effect on the project completion date in isolation of other events.

Put simply, the objective of carrying out the above exercises is to show why the job took longer than planned. In the context of a court action, the word ‘show’ can be substituted for "prove, on the balance of probabilities".

Of course, the depth and extent of the delay claim analysis will be dependent on the level and detail of the contemporaneous records available. In the UK, this reconstruction of the contractor’s original programme as there are few contracts entered into that require the contractor to produce a true network analysis and to keep it regularly updated. Standard form contracts are generally lacking in the UK in respect of requiring detailed programming techniques to be adopted in the management of progress.

Summary
The claimant is free to choose any format he wishes for presentation of his delay claim but should be aware that the courts have rejected some formats. It may be however, that the claimant has other reasons for selecting a particular format (e.g. as a negotiating tool or because their client has requested a particular type of presentation). Should the claimant proceed with a claim in a particular format for say negotiation purposes and then find that negotiations break down and a dispute ensues, then the claimant may be put to the task (and cost) of reworking the delay claim into a format more acceptable to the court.

Now that the Civil Procedure Rules (‘CPR’) are in place, it is important that the objectives of CPR are considered which basically means that issues of fairness, time and cost effectiveness are important. The Statement of Case (which replaced Pleadings) should clearly set out the case to be answered. Therefore the format of any claim for delay should also have the principles of CPR in mind.

The most detailed claims programming method is Time Impact Analysis and although not specifically mentioned in the above cases, it requires the application of retrospective analysis techniques (accepted in McAlpine v McDermott). However, like other programming methods, its application is dependent on the records available. The purpose and intended use of a delay claim is of relevance in that Time Impact Analysis is not necessarily a requirement if there is little likelihood that the claim will proceed to litigation/arbitration. Time Impact Analysis is very detailed and time consuming and the claimant may wish to proceed with a different technique in appropriate circumstances. As stated in the cases above, the claimant can proceed as he sees fit (subject in legal proceedings to ensuring that the other party knows the case against it).

Mervyn Raybould Associate Director, is based at Trett Consulting’s, Coventry Office