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PMKI > IT
& Construction Industries > Claims
and Forensic Analysis.
- Forensic analysis and reporting
- Assessing Delay and
Disruption
- Concurrent and
Parallel Delays
- Referenced Court
Judgements
- Casewatch Publications
- Claims & Expert Witness
- Useful External Web-links &
Resources.
Other related sections of the PMKI:
- Contractual Dispute
Management
- Mosaic's Dispute Management and
Support Services
- Project Controls &
Scheduling
Aspects
of project management that are primarily focused on
understanding the causes of project issues and problems
and/or developing and assessing the implication of issues
or problems.
Forensic analysis is usually carried out by an independent expert who has been commissioned to prepare a report either for use by the organizations management, or more often for use in litigation. Developing an 'expert' report to defend, or prosecute, a claim requires a very disciplined approach: It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts (Sir Arthur Conan Doyle). A good 'expert report' is based on researched and validated data, with the determined facts (supported by the data) clearly separated from expert opinion derived from the facts. After many years of practice, we are getting quite good at this.
Mosaic provides expert assistance in the preparation and defense of claims. See more on our Dispute Management and Support Services page.
Forensic analysis should be seen as part of an overall dispute management strategy, rather than as an end in itself. See more on Contractual Dispute Management page.
Delay claims, linked to disruption and acceleration cost
claims are common in the construction and engineering
industries and are becoming more common in other projects.
A key area of each claim, present in most contractual
disputes, involves assertions of delay with associated
disruption and/or acceleration costs. This type of claim
usually appears after normal contract processes are being
severely tested and the contractor has engaged experts to
assist its cause. This section is designed to help both
industry decision makers, and ADR and legal
professionals, understand the options available to
disputants in assessing ‘delay’ to help them quickly cut
through the fog of expertise present in many major
disputes to achieve a speedy determination.
The basis of assessment in most of the approaches
discussed below, and by far the easiest frame to use in
presenting or defending a claim is a competently developed
and maintained critical path (CPM) schedule.
Easy CPM is a course-in-a-book that
provides practical training and guidance to individuals
and organizations involved in developing or using CPM
schedules based on the Critical Path Method (CPM). It is
designed to act as both a reference, and practice guide,
for people implementing CPM scheduling after they have
learned to use the CPM scheduling software of their
choice.
PP: Assessing Delay
and Disruption - Tribunals Beware. Delay
claims, linked to disruption and acceleration cost claims
are common. This paper, based on the AACE® International
Recommended Practice No. 29R-03 Forensic Schedule
Analysis:
- Describes the origins, strengths and weaknesses of
‘Critical Path’ scheduling.
- Outlines the current ‘state of play’ with regards to the
practice of scheduling.
- Describes the primary approaches to delay analysis,
their strengths and weaknesses, including:
- As-Built v As-Planned
- Impacted As-Planned
- Collapsed As-Built
- Window Analysis and its variant, Time
Impact Analysis.
- Describes the type of record needed to support the delay
analysis.
It concludes by suggesting some questions a tribunal (or
manager) may choose to direct to various scheduling
experts appearing before them to ascertain the robustness
of the evidence being presented to help turn the mass of
data typically accumulated in a ‘claim’ into information.
The complexities around concurrent and parallel delays are
discussed.
PP:
Assessing Delay – the SCL Options. This paper
reviews The Society of Construction Law Delay and
Disruption Protocol (2nd edition), and
contrasts the SCL Protocol with the AACE®
International Recommended Practice No. 29R-03 Forensic
Schedule Analysis (2011 Ed.). Both documents
take a very similar approach to assessing delay and
disruption on construction projects. The fundamental
difference is in the focus of the documents, the objective
SCL Protocol is to provide useful guidance on some of the
common delay and disruption issues that arise on
construction projects, with a view to minimizing disputes
whereas AACEi 29R-03 focuses on forensically analyzing
delays after the dispute has arisen.
Download the original PMWJ version of
this paper.
Download the Delay and Disruption
Protocol - free of charge from The Society of
Construction Law (UK): https://www.scl.org.uk/
PP: Delay, Disruption and Acceleration Costs. Unfortunately, most prolongation or disruption claims seem to result in excessively large cost claims that damage any possibility of negotiating a reasonable settlement. This paper examines the theoretical underpinnings of ‘delay and disruption’ costs to suggest a realistic basis for their calculation. It is designed to help non-experts see through the ‘smoke and mirrors’ of schedule claims to understand what’s likely to be real, what’s feasible and what’s hyperbole.
PP: Assessing Delays in Agile & Distributed Projects. The internationally recognized approaches to assessing delay and disruption discussed in the papers above, are based on the premise there is a well-developed critical path schedule that defines the way the work of the project will be accomplished. Therefore, events that delay or disrupt activities in the schedule can be modeled using this schedule, their effect assessed, and responsibility for the assessed delay assigned to the appropriate party. The focus of this paper is to offer a practical solution to the challenge of assessing delay and disruption in agile and distributed projects where the traditional concept of a ‘critical path’ simply does not exist and the effect of intervening events has to be considered in terms of loss of resource efficiency. Click through to see more on Managing Agile and Distributed Projects.
Blg:
Costain vs Haswell Revisited. This judgement
has a number of important findings relating to schedule
delay analysis:
1. It is necessary to prove the delay event caused a
delay to completion (a challenge for a Windows approach
to delay assessment).
2. A CPM schedule is unlikely to provide a sound
basis for delay assessment in agile and distributed
projects.
Blg: Dealing with client delay. Preventing or minimizing client induced delay is a common issue. Whilst this type of delay can never be completely eliminated, they can be reduced by applying this pragmatic six stage approach.
Concurrent and
parallel delays occur when two separate causes of delay
affect the same project during the same, or overlapping,
periods of time. In this situation determining the cause
of the delay and consequently which party is responsible
for the consequences of the delay can be very complex.
"Time is money" is an often heard statement that drives and motivates every player engaged in the project management industry. Ironically it is also the dual elements of time and money that cause some of the most time and money consuming disputes, particularly in the construction and engineering industries. One of the most troubled and complicated area is that relating to the concept of concurrent delay, which is a strongly contested topic. Both parties to a construction contract regularly use concurrent delay as an excuse to avoid responsibility for extension of time claims and the assessment of liquidated damages.
To date there has been no uniform application of legal principles to the concept of concurrent delay. This is largely due to the fact that the answer to the concurrent delay dilemma is complicated because it is requires consideration of the interaction of many different factors. The aim of this section is twofold. The first is to identify the variety of principles or methodologies that may be followed in resolving parallel delay disputes. The second is to outline the various practical aspects relating to dealing with concurrent delay disputes, by examining methods of assessing concurrent delays, categories of information that must be sourced in resolving parallel delay disputes and practical contractual management techniques in securing relevant and contemporaneous information to deal with the consequences of parallel delays within a construction contract.
WP: Independent, Serial and Concurrent Delays. An overview of the differences between independent, serial and concurrent delays and the options for assessing the effect of concurrent delays.
Art: Concurrent Delays – UK High Court Decision Supports SCL Protocol. This article discusses an English High Court decision supporting the approach to concurrent delays advocated in the Society of Construction Law Delay and Disruption Protocol and our White Paper (above). This judgement is likely to be influential in the UK, Australia and most Commonwealth countries, requiring expert assessment and analysis to be founded in common sense. The SCL Protocol can be downloaded from: https://www.scl.org.uk/ (free for personal use).
PP: Concurrent Delays in Contracts. The concept of concurrent delay is a strongly contested topic in the building and construction industry. The aim of this paper by Jim Doyle is twofold. The first is to identify the variety of principles or methodologies that may be followed in resolving parallel delays disputes. The second is to outline the various practical aspects relating to dealing with concurrent delays disputes (see the original paper).
Navigant Consulting: a series of papers highlighting the differences in approach to assessing concurrent delays in different regions of the world:
- Navigant
Consulting: Focus on Southeast Asia
- Navigant
Consulting: Comparison of English and U.S. Law
- Navigant
Consulting: Concurrent Delay and the Critical Path, the
AACE Protocol
- Navigant
Consulting: Concurrent Delay (USA).
Delay and Disruption Protocol - The Society of Construction Law (UK): https://www.scl.org.uk/
UK
and Australian Judgements referenced in this section.
Costain Limited v Charles Haswell &
Partners Limited [2009] EWHC B25 (TCC). England and
Wales High Court, 24 September 2009.
Blg:
Costain vs Haswell Revisited. Discusses some
aspects of this important judgement.
Walter Lilly & Co Ltd v Mackay [2012] EWHC 649 (TCC) 2012.
Casewatch
publications are a brief topical report on recent
Australian cases in the construction, development, and
project industries.
Click through to the full
listing.
Wells v Army and Navy This 1903 case shows that if the Contract does not clearly provide for an extension of time as a result of a defaulting act of the Principal, the prevention principle may be enlivened relieving the contractor from the requirement to pay liquidated damages. [View Casewatch PDF]
Dunlop v New Garage This 1915 case clarifies that the use of the words ‘penalty’ or ‘liquidated damages’ does necessary mean that a clause is either an unenforceable ‘penalty’, or an enforceable ‘liquidated damages’, clause. The Court will review the clause in light of the circumstances at the time of entering into the Contract. [View Casewatch PDF]
Peak v McKinney This 1970 case supports the proposition that a principal may lose the right to claim liquidated damages if some delay is due to the principal’s defaults or the defaults of its employees or agents and the contract does not provide for an extension of time in that event. [View Casewatch PDF]
Click through to the full listing.
Mosaic
provides expert assistance in the preparation and defense
of claims including the preparation of expert reports.
Developing an expert report requires a very disciplined
approach. A good 'expert report' is based on researched
and validated data, with the determined facts (supported
by the data) clearly separated from expert opinion derived
from the facts.
Art:
Delivering Expert Evidence is Becoming Harder.
This article discusses a number of recent judgements that
seem to have re-framed expert evidence, 'the court is
not compelled to choose only between the rival
approaches and analyses of the experts. Ultimately it
must be for the court to decide as a matter of fact what
[occurred]. '...there is an overriding
objective of ensuring that the conclusions derived
from that analysis are sound from a common-sense
perspective'.
The Society of Construction Law (SCL) Delay and Disruption Protocol provides guidance to all parties to the construction process when dealing with time/delay matters. The SCL Protocol can be downloaded from: https://www.scl.org.uk/ (free for personal use).
Doyles Construction Lawyers: https://doylesconstructionlawyers.com/
Australian legal forms: https://lawlive.com.au/
