As you might expect, being experts in construction delay, we are always looking out for developments and changes in the law relating to our work. However, 2021 was a relatively quiet year in the world of delay claims and disputes.
Nevertheless, there have been a few 2021 cases worth looking at, and some thought-provoking developments.
Delay Down Under
Firstly, with thanks to the good people at White and Case for highlighting, there have been some interesting cases in Australia. The key point appears to have been whether a delay analysis should be ‘prospective’ or ‘retrospective’. That is to say, should you predict the impact of a delaying event, or should you look back at what happened? This reflects a case in Northern Ireland. Then, the judge said, “Why should I shut my eyes and grope in the dark when the material is available”.
Two cases – Build Qld Pty v Pro-Invest Hospitality, and John Holland Pty Ltd v The Minister for Works looked at this. The cases highlighted the importance of the contract in assessing Extensions of Time. Also, parties to a dispute must refer to the contract first in deciding how Extensions of Time should be determined. White and Case provide a helpful summary of the approaches of different forms of contract on their website here.
Not So Co-Operative…
Here in England, in CIS General Insurance v IBM UK, an IT dispute made a rare appearance at the High Court. The moral of this story was the critical importance of good records and contract management. Unusually for a technology dispute, a delay expert was used. The judge noted that he was, “hampered by the absence of project documents and programming tools, tracking planned and actual progress, that would usually be available for such [an] exercise”.
This is, in our experience, a feature of many projects, particularly where substantial delay claims arise. Sadly it may be the case that had good records been maintained from the outset, a substantial delay claim would never have arisen. But if a claim does arise, those records become even more important.
Over the pond in Canada, WLG Gowling look at the case of Schindler Elevator Corporation v Walsh Construction Company of Canada. It involved an examination of the thorny subject of ‘concurrent’ delay and the critical path. The claimant appears to have been unsuccessful in demonstrating that concurrent delay occurred. Once again, the key element here appeared to be the ability to prove cause and effect – which relied on records.
Delay on Trial
Last, but by no means least, is the 2021 case of Triplepoint v PTT. In this dispute, Paul Darling QC took time to explain delay analysis to the Lords and Lady of the Supreme Court.
The case itself is more a legal and contractual examination of the importance of understanding and getting contract terms right. However, what we find particularly interesting in this case is that we have the opportunity to see a leading QC discussing delay analysis. The hearing is available to watch on the Supreme Court website. The afternoon hearing becomes particularly interesting (for us!) from around 40 minutes in.
In conclusion, a few key points come out of the key delay cases in 2021:
Firstly, and crucially, the well-worn mantra of the importance of records. Next, the importance of reading, understanding, and following the contract. And finally, the importance of understanding the impact and cause and effect of delaying events. It is not always the case that a delaying event of one day will delay a project by one day.
Do you need any assistance with matters of delay? Can we help you in understanding some of the issues raised in this article? Don’t hesitate to drop us an email or call us on +44 (0)20 3889 0190.