Retrospective delay analysis

The assessment for an extension of time must be supported by some form of analysis. The extent of the analysis may depend on the nature of the delaying event, the complexity of the project, and whether the submission relates to a simple notification of a likely delay to the architect or demonstration of delay in a more formal arena.

Delay analysis is increasing in importance in the UK, with many surveyors identifying the need for a more detailed analysis than has been the norm. Surveyors, architects and engineers should take note of a number of important recent judgments when conducting such analyses. The judgements are considered in some detail in the cases resource.

Importance of logical assessment

Those responsible for analysing delay need to conduct a proper retrospective delay analysis. It is no longer acceptable (if it ever was) to award an extension of time or assess prolongation costs based on an impressionistic view formed from a comparison of simple bar charts.

This principle was highlighted by the case of John Barker Construction Ltd v London Portman Hotels Ltd [1996] 83 B.L.R 31, where the judge held that the effect of the architect making an impressionistic, rather than a calculated and logical, assessment of the contractor's entitlement to an extension of time, was to introduce a fundamental flaw into his assessment. The architect's award was therefore disregarded by the court, which used the contractor's own delay analysis to determine the contractor's entitlement to an extension of time.

It is also important not to get too carried away with the delay analysis process. In Skanska Construction UK Ltd (Formerly Kvaerner Construction Ltd) v Egger (Barony) Ltd [2004] EWHC 1748 (TCC) a delay analyst who had been called as an expert witness was criticised by the judge for having prepared a report of some hundreds of page, supported by 240 charts, but having undertaken inadequate research and checking of the facts. Also, in City Inn Ltd v Shepherd Construction the court held that a formal critical path analysis may assist, but is not a necessity.

In any event, the burden of proof will remain with the contractor. Any claim should always be based purely on the facts and not on any theoretical or hypothetical analysis. Certainly, this burden of proof should not be seen as one that is straightforward to satisfy with minimal evidence (Bluewater Energy Services BV v Mercon Steel Structures BV [2014] EWHC 2132 (TCC)).

In Carillion Construction Limited v Emcor Engineering Services Limited and another [2017] EWCA Civ 65, the Court of Appeal held that a subcontractor's extension of time should run contiguously from the end of the existing period for completion, and that extensions of time for later discrete periods relevant to the delay should not be fixed.

Ownership of float

The ownership of any float contained within a contractor's programme is a much debated issue and has been argued about for many years.

The case of Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd [1999] touched on the issue of float and provided some useful guidance on delay analysis, as well as illustrating the difficulties faced by a main contractor when trying to pin the blame for project delay onto its subcontractors.