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HANDLING EVIDENCE: WHAT YOU NEED TO KNOW ABOUT ITEMS INVOLVED IN LITIGATION
By Denis Gagnon, BSc., P.Eng. / August 31, 2021
Owners of buildings and dwellings seeking to make a claim against a third party are often under the false impression that they are entitled to remove, alter or dispose of an item they suspect to be the cause of a loss or an issue within the building or dwelling. Nothing could be further from the truth. Any item that is removed, altered, destroyed, or disposed of can significantly impact the outcome of a litigated claim. For example, it was my experience that torque became a point of contention after a claimant removed a bolt without measuring torque and before all parties were allowed to participate in the examination. Careful attention must therefore be taken when handling items that may be considered evidence in a litigated claim.
Fortunately, the ASTM E860 Standard Standard Practice for Examining and Preparing Items that Are or May Become Involved in Criminal or Civil Litigation provides valuable recommendations regarding handling items of evidence that may be involved in a claim. The Standard also provides guidelines for documenting the condition of items of evidence and for testing, examining and disassembling such items.
I highly recommend that any party holding physical evidence that is or may be involved in a claim to follow the recommendations provided within the ASTM E860 Standard to ensure they do not jeopardize the outcome of the claim.
Main Takeaways from the ASTM E860 Standard
As per the ASTM E860 Standard, if you are or representing the party conducting the examinations or tests, you should ensure that:
- you document by photograph or other descriptive means the state and condition of the evidence, prior to testing or altering the state of the evidence;
- you document any post-incident changes to the evidence;
- you perform non-destructive testing before destructive testing of the evidence;
- you use exemplars, if possible, to preserve the integrity of the evidence;
- you notify and advise your client that the proposed tests are likely to alter the state of the evidence;
- you advise your client that all interested parties be allowed to participate in the proposed testing of the evidence, and that;
- you preserve and label the evidence to maintain its integrity.
That said, I also recommend you not alter the evidence before preparing and submitting a testing protocol to all interested parties, you allow all interested parties to comment on the testing protocol, and you allow all parties the opportunity to observe and participate in destructive testing of the evidence.
If you have any questions or concerns regarding the handling of evidence that is or may be involved in a claim, you should speak with a lawyer or forensic engineer. At Arbitech Inc, we help lawyers and claimants deal with forensic engineering investigations.
By Gerald (Jerry) Genge, P.Eng., C.Eng., BDS, BSSO, C.Arb., Q.Med.
You heard me. “Obfuscation!”…. Does it bother anyone else that some legal counsel chooses to smear mud over clear issues and meticulously presented evidence when it is equally clear that their client cannot possible benefit? It wastes time and, I guess, in doing so, ramps up the legal costs which might leverage a lower settlement value. But it is also counter to promotion of an effective and efficient process by reasonable people toward a fair resolution.
I wrote an opinion report recently dealing with a townhouse that had structural and leakage issues. In this case, my opinion was not about what to do. It was about who was responsible – negligence issues – not damages. Those had already been established and the repairs were complete. Basically, through a review of documents, my opinion said that the engineer of record had a duty to design appropriate shoring and drainage; he failed in his duty to do so; and as a direct result, repairs were needed. Yes, the municipality was also on the hook for failing to meet their duties and the builder as well for failing to comply with the design that was wrong and, in his failure, actually making it worse. But that’s not the issue here. The issue was that of the wording of the one-page covering letter to my report. In that letter, I stated that the report was intended for mediation. Further, I stated that I did not append all footnoted documents as those were in the court record. Like all expert reports should, I added the phrase stating that the opinion was based on available information and that if new information became available, I might change my opinion. We’d been through discoveries, so if new information appeared, there had better be a very good reason. It was a report that could quickly be amended for trial if needed. But this was not going to trial. It was obviously headed toward settlement. Being a report for mediation, I knew that the mediator was not going to read the 100 pages let alone another 100 pages of referenced documents; so, why include those. He was only going to read the 3-page executive summary.
The engineer’s legal counsel knew all this. He knew it was silly to append all referenced documents; he knew his client’s insurer was going to write a cheque. I knew that he knew this because I had been his expert on another matter so he and I both knew where this case was headed. But, rather than move forward with the business of closing the matter, he chose to take issue with the wording of the covering letter to my report. He said that my report was “not final” that it was “without prejudice” and; therefore, could not be used in the mediation. I amended the wording of the letter once – removing the statement that it was intended for mediation. A week later – same response. After my client’s lawyer and I shook off our disbelief and she (our client’s lawyer) torn him a new one over the phone, we finally went to mediation. Less than a day later there was a draft settlement agreement which is now being tuned up for execution. The engineer’s lawyer wasted two weeks. Nobody understands why. Nobody understood why an opinion report for mediation should cause him such concern.
The only answer I have is that he knew he was holding no playable cards so he had to use distraction as a tactic to make it seem like he was doing something. He couldn’t deal with the facts so he dealt with the paper they were written on. Obfuscation may work before you get to trail. It may increase the anxiety of the parties to make it seem like they have a softer claim than their expert has presented; but, in front of an arbitrator with subject matter expertise or a seasoned judge, as a tactic, it becomes his liability as it withers before the evidence.
So, legal community…. why not quit with the games and just get down to business? The civil justice system has enough problems without lawyers lathering on more.
By Gerald (Jerry) Genge, P.Eng., C.Eng., BDS, BSSO, C.Arb., Q.Med.
Of course, they don’t hate you. They may even like you. But if they don’t agree with you and show it by not paying or perhaps even suing you for deficient work, what are your options? You can lawyer up and issue a construction lien. That’s pretty common. You can also try to salvage the relationship with promised defect correction and expedited completion – seen that too. You can engage a mediator and spend a day or more in separate rooms anticipating what the other guy might be thinking – that often works because most contract and construction mediators start the process by the “scare you into settlement by underscoring the cost to take it to court” strategy. That is an ugly truth and often leverages a mutually disagreeable result. If none of those options are to your liking … maybe a arbitration will allow you both to move on. You may “win” you may “lose” but you will be able to move on and you will learn from the process.
Gerald R. (Jerry) Genge is the Principal of Arbitech ADR providing Dispute Resolution, Expert Services, and Neutral Assessments on building design and construction disputes.
DOES AN ARBITRATOR WITH SUBJECT MATTER EXPERTISE GIVE YOU A BETTER DECISION?
By Gerald R. (Jerry) Genge, P.Eng., C.Eng., BDS, BSS, Q.Med., C.Arb.
Would you prefer the balanced but contentious classic civil court process… or would you rather get it resolved by someone impatient about getting it right? This brief article describes the alternatives and one proven way to move disputes from a looming mountain of paper and process to the rear-view mirror.
On one hand, the civil justice system is underpinned by fairness and equal opportunity to argue or defend a claim. It has allowed evidence to be weighed and interpreted, and to form the basis for the opinion and decision by only the judge. The judge may have experience in many aspects of law; but, they are likely not trained in matters involving technical issues. Sometimes common sense is enough; but, not always. Enter the “expert”. As an exception to the rules of evidence, the expert may be granted the right to present an opinion on the technical matters. If well presented the “opinion” evidence should replace a judge’s personal experience or bias or their indecision with a fair and reasoned expert opinion. A good expert can do this. A hired gun can not and since the “hired gun” is the usual worry of all other parties, they too must engage “experts” to respond to the evidence and present their “expert opinion”. On the surface, that all supports fairness and equality of opportunity. It also slows the process and adds cost as report upon report upon report is written and produced. The reports may answer only some of the questions about the matter and; thus, be only part of the picture. They may be long and tedious to read. They may be advocating for a position. They may not be helpful at all.
On the other hand, an adjudicator or arbitrator with technical subject matter expertise may be able to hear technical evidence and substantially abbreviate the time it takes to respond. If they are really on their game, they may require that the experts for all parties meet with a facilitator to pare down the points of disagreement and, without influence by the advocates or the principals in the claim, establish a fair valuation of damages or specific performance needed to resolve the issues. Then the expert evidence may be limited to assessing liability which a worthy adjudicator can probably work out using the contracts or other documents obligations. As another option, the technically astute arbitrator adjudicator or may choose to get all the experts together as a panel and question them on their reports, direct certain experts to do certain activities, or give counsel some direction on the limits of the qualifications of the experts. In the cases that I have done this, the parties were present in the background; the evidence took less than half the time to submit; the case settled that day.
In the cases where the conventional process is employed, everyone spends a lot of time and money working their way to the date of a trial. Sometimes the important parties have disappeared. Sometimes the evidence and memories are stale. But, the due process is upheld. In the cases where someone with subject matter expertise takes control, time taken, money spent, anxiety experienced, and public exposure presented can be curtailed while possibly arriving at a better answer to the questions of liability and damages.
Jerry Specializes in ADR of matters in the $250,000 to $1,000,000 range and applies over 40-years’ experience to resolution in a friendly, yet efficient settling.
WHAT WERE YOU THINKING?
By Gerald (Jerry) Genge, P.Eng., C.Eng., BDS, BSSO, C.Arb., Q.Med.
I occasionally get calls from people who say that they are embroiled in a legal action and would like me to recommend a mediator for a construction claim or construction defect issue; but, that they would like to hold my name in reserve as an arbitrator because they expect the mediation to fail. Seems disingenuous to recommend myself; but, I try not to take that personally.
Its curious that people continue to feel that mediation is a necessary step in the dispute resolution process. Perhaps I should advise them that if they don’t like the added expense, don’t appreciate the potential for a “mutually disagreeable” resolution, or simply don’t want to go through the trauma of a mediation or show their hand – so to speak, why not just have an arbitrator with subject matter expertise deal with it? Of course, then I would have to end the conversation with… “say no more unless you want me to be conflicted out… give me the contact info for all the parties and I’ll send an arbitration agreement to you all”.
While mediation is often a good choice and can arrive at a “mutually disagreeable” answer, Alternative Dispute Resolution or ADR does not equate to “Mediation”. Particularly for smaller value disputes – say under $500,000 – where legal fees can be disproportionate to the claim value, Arbitration can put the issue to rest in a cost-effective manner. Worth a try. You may not like the answer; but, there will be less pain in the pocketbook.
Gerald R. (Jerry) Genge is the Principal of Arbitech ADR providing Dispute Resolution, Expert Services, and Neutral Assessments on building design and construction disputes
CONSTRUCTION CLAIMS IN A COVID-19 ENVIRONMENT
By Gerald R. Genge, P.Eng., C.Eng., BDS, BSS, Q.Med., C.Arb.
Legalese aside…. to have a claim, someone was supposed to do something they did not do, or did they do something that they were not supposed to do? If you realized consequences as a result, you may have a claim to be compensated for those consequences. That simply means that a bargain you made was not honoured. Easy, right? But what if something else forces one or both parties to that bargain to fail to meet their obligations? What if, despite their best intentions and attempts, they cannot fulfill their obligations? How does that affect their claim?
Imagine if you will, a situation in which, though a CCDC 2 Stipulated Price Contract executed last January, a building owner/manager hires a contractor to replace all the windows in a high-rise building starting in March 2020 and finishing by September 2020. That work has been needed for some time and the occupants have been insistent that they need new windows. To calm the occupants, the owner/manager of that building, promises the occupants by a newsletter and Town Hall meeting that they would have new windows before the fall of 2020.
Supposing as well, that several of the occupants had made arrangements with other contractors to repaint walls, and make other improvements that could occur only after the windows were installed and that their contractor’s lump sum prices for those improvements were agreed by a signed purchase order which stipulated that price was dependent upon completing the work in September 2020. You see where this is headed?
In steps COVID 19 and government business intervention measures to protect health and safety in an “all in this together” approach. The window contractor’s glass supplier becomes insolvent and closes down. The window installer looks for new glass but cannot get any until November due to shortages. The trickle-down impact of COVID 19 on business agreements is in place. Now, we have a painter who agreed to do work in September 2020 but is told he cannot, an occupant who based that agreement on a commitment from the building owner/manager that work in their suites would be completed before September 2020 who cannot get the work done, and a window contractor who was to do the window work but is unable to do that work because now, he can’t get the right glass in time.
The painter says he is ready to go in September; but, if the work is delayed, he will charge 20% more because the government suspension of work has prevented him from working; purchase orders have been backing up, and to satisfy everyone, he will have to pay overtime. The contractor who was to install the windows says that his price has to increase 30% because his glass supplier is no longer around and the only other supplier he can find with that particular type of window will cost 30% more. Moreover, this delay has cost his business so much that his surety company will no longer provide a labour and material payment bond. Finally, if the owner/manager does not accept these new terms, the window contractor says that the contract can no longer be completed as agreed, has been “frustrated”, and he can no longer do the work.
The owner/manager says that he has no knowledge of where the windows came from and that if there are extra costs those are the contractor’s responsibility. Further, the owner/manager says that if he is sued by the occupants for extra costs arising from the window contractor’s delay, he will back-charge those to the window contractor. Messy, no?
In this situation, who can claim for costs? Who has originally prescribed obligations that they no longer have to meet? Who gets to charge more? Lawyers will say, look at the contract. Was there a provision for delay not contemplated? Was there a compensation clause? Was there a compensation and delay without consequences clause?
This term has been tossed about quite a lot lately. Basically, it means that a contract can no longer be executed because there were intervening and extraordinary circumstances, sometimes referred to as “acts of God” that were not, perhaps could not, have been contemplated. These could include fires, labour disputes, strikes, lockouts, diseases, plagues, and epidemics. Under the heading of epidemics, certainly COVID 19 has been declared a worldwide pandemic; but, does that make it a claimable event? There are no clear answers, but here are just some thoughts on the matter.
- A CCDC 2 Contract has General Condition (CG) 6.5 regarding delays and costs. That clause can guide a claim or response subject to Supplementary General Conditions (SGC).
- Force Majeure in the manner of a pandemic may trigger delays or delays and costs can be informed by CG 6.5 or amending SGC.
- While a Force Majeure event may have occurred, the occurrence may not be sufficient grounds for a claim or counterclaim. Details such as foreseeability, ability to alter an agreement, ability to mitigate costs, and effort to mitigate costs all weigh into any claim.
- One must also consider the significance of any change in costs. Would a 10% increase in cost be claimable as a response to a force majeure event? How about 20%, 50%?
- If work is only delayed and not terminated, is the delay within the total non-critical path period of a project or is it just an extension of certain critical path periods? What is the actual extended period?
- If the work is terminated due to a force majeure event, and the termination is invoked by the building owner/manager (in the case of the window installation) or by the occupant (in the case of the painter), can these contractor(s) claim lost opportunity costs, lost income, overhead and profit on the project, and/or overhead on the costs to maintain their office.
- If the work is terminated by the window contractor, can the owner/manager claim costs for delay or 3rd party claims from occupants passed along as the added costs to do the painting?
- Does the understanding between the occupant and the owner/manager constitute a contract that can trigger a claim?
- Can any of these matters be claimed against business operations insurance?
- Do a government measures trump all or any commercial arrangements in contracts affected by COVID 19?
- Does the government have any liability for possible failure to protect citizens against effects of a pandemic type force majeure-type event and to what degree was it foreseeable?
- Can the government be held financially responsible for frustration of the commercial arrangements and associated costs?
Like everything else we do, the actions we agree to take and accept in a contract are based on the type and amount of risk we will take and how much the taking of that risk is worth. But what if you do not know the risks?
Who should be at risk?
Contracts are really all about doing something for someone and getting something in return (illegal activities excluded). When nobody else intervenes in a contract, there is supposed to be an ability for the parties to understand the expectations and the rewards in those contracts. In that way, they can decide how the risks can be divvied up. Normally, if you assume more risk, that is worth more than if you assumed less risk.
COVID 19 and the government threw a huge wrench into the works of construction contracts. Under the heading of “we’re all in this together”, government (presumably rightly) shut down most businesses and, thus, the ability of those businesses to do things they promised to do, pay for things they promised to buy, and go places they promised to go. As it sits today, in the absence of better force majeure compensation clauses in contracts, there is a very tall hill for a claimant to climb to demonstrate that the contract could not be completed. I will not quote case law, but the conditions that allow a contract to be ended due to force majeure essentially term ”impossible” has been the subject of some discussion. Today, essentially, the contract has to have been made “impossible” and, thus, totally frustrated by unforeseeable events such that it cannot be completed. But, “impossible” is very different situation from being “commercially impractical”.
A contract that is “commercially impractical”, considering the intervening restrictions and suspensions, can no longer be done in the planned time, or cannot be done with the same materials. It is not “impossible”; it is just not possible at the same cost, time, or using the same materials.
It seems to me that at present, the assumptions made by contracting persons, like our window installer who expected to get glass starting in March and possibly expected to have access through the occupied spaces to install those windows or the occupant who agreed with a painter to have work done at a specific time and cost following the window replacement, were reasonable risks that each understood and paid for or were paid for. If those conditions are out the window, so to speak, it would seem that the current frustration or “impossible” threshold puts a heavier burden of risk on the contractor. Disagree if you will.
As a glimmer of light contrary to current “impossibility” standards for frustration of a contract, the Canadian Law Dictionary © 1980, defines “impossibility” as follows:
“[…] ‘Impossibility’ means not only strict impossibility, but impracticability because of extreme and unreasonable difficulty, unanticipated difficulty, expense, injury or loss involved … Mere unanticipated difficulty, however, not amounting to impracticability is not within the scope of the definition.” Restatement of the Law of Contracts, American Law Institute, vol. II, S 454 […]”
So, there remains a very high test of “impossibility”. It would seem that the test requires deep exploration of the facts to arrive at a determination of whether a particular contract has been made impossible or merely more difficult.
Whether, a contract is impossible, impractical, unreasonably difficult, etc., will undoubtedly be the subject of much new Canadian common-law in the years to come. One can also expect that in a post-COVID 19 world, there will be substantial changes in the drafting of contracts regarding delays, suspensions, and associated costs to more reasonably share the risks involved. I expect that there will also be added layers of complexity as in our example of the painter affected by the inability of the window supplier to meet expected timelines.
While several steps removed from the government intervention measures, there have been unpredicted consequences brough about by conditions to which nobody had agreed. We may have been “in this together” as far as protecting our health and safety; but that may not be the case when trying to reconcile costs and damages.
In the meanwhile, I expect that there will be an accounting done and fingers pointed. Interesting times ahead.
Gerald R. (Jerry) Genge is an ODACC Adjudicator, engineer, mediator and arbitrator employed by Arbitech Inc. and Pretium Engineering.
CAN YOU OVERCOME BIAS?
By Gerald R. (Jerry) Genge, P.Eng., C.Eng., BDS, BSS, Q.Med., C.Arb.
There’s been a lot of negative “press” about bias; but maybe we shouldn’t beat ourselves up about it so much. Simply put, it is a prejudice… and we all have them. Every person with memory is prejudiced; that is, they have developed through experience and assimilation a pre-judgment that will affect a decision they make now. Every trier of fact, every expert, and every lawyer is pre-disposed to interpret a current question based not only on the current information or evidence, but also on the combined recollection of their past experiences and information. We have no choice. We are wired that way.
Not only are we pre-disposed to prefer one line of thinking over another, we are entirely convinced that the preferred thinking is correct and we will try very hard to find ways to make a new situation fit our way of viewing things. For the most part, we react emotionally first (using our lizard brain) and then justify our decision using the more-evolved parts in the cortex. I’m not making that up, there are libraries full of books on our lizard brain, how we misremember things to support our preferred recollection, and how our positive or negative experience toward or against something, whether that experience be real or imagined, creates our predispositions or biases.
What’s worse is that not only are we each struggling with our own biases, people all around us are attempting to modify our biases to fit their view of the way things should be. You see evidence of bias all around you every day. These are in the news when we hear or read about political or religious conflict, on television and radio when we see and hear advertising, and in social media, which is omnipresent. Someone, somewhere is either trying to reinforce your beliefs or change your mind. Everyone promotes their particular biases.
If you are willing to accept that everyone is biased (which is one of my biases incidentally), then you may be ready to accept that it is an affliction that can be controlled. I’m not offering psychoanalysis. Apart from being wholly unqualified, this piece has already reach 300 words and I’m running out of space. But, if you realize that your past has biased your approach to the present, you may be in a better position to dampen your bias to a manageable level. For example, I am an experienced engineering consultant who has also benefitted from a good income and made life choices that, on balance, have allowed me a comfortable lifestyle. I am also the chairman of a tribunal that hears appeals involving Municipal Orders about violations of building construction and maintenance standards. Almost invariably, the Appellant is a person who is far less fortunate than me, maybe has some combination of physical or psychological problems, or maybe just has a far greater tolerance for disorder and disrepair than the applicable benchmark. It would be easy to simply apply my rules and the written rules and confirm each municipal order. “Heck, if I can keep my property up to standards, why can’t they?” My tolerance for people that violate the rules is admittedly low. My discretion is, however, pretty broad. My bias toward order and compliance must be tempered by current circumstances and evidence in the here and now. Which, incidentally, is why I disallow the tribunal members a personal visit to the “offending” property. Their independent investigation would give them information that is maybe not in evidence. If we can keep our personal biases in check and our rulings reasonable and impartial, my tribunal will not only be as unbiased as possible, we will be seen to be “unbiased”.
So, what might any of this mean for you?
If you are an expert witness writing a report, make sure that the application of your expertise is limited to the correct and reasonable interpretation of the evidence you have collected or are appraising and that you are not “advocating” for your interpretation of the science or methodologies (unless you have been asked to explain the differences between the science and methodology options and to select the more appropriate for the circumstances).
If you are a mediator with subject matter expertise (which I still think is a good thing), be careful that your expertise does not influence you such that you become partial to one position or the other. Knowing when someone is blowing smoke is one thing; supporting the contrary position is quite another. Nothing neutral about that.
If you are an arbitrator with subject matter expertise, be careful that your expertise doesn’t weigh heavily in your decision (or maybe at all). Like my tribunal, you don’t want to be in the position of introducing your own unspoken evidence into your decision – evidence that was not cross examined. In the very least, if you think an important issue is not being discussed, you should disclose what you think are criteria and parameters that may or may not apply and let the parties argue those points (a good Hot-Tubbing can achieve that). If your bias underpins your decision, you run the risk of having your ruling challenged on the basis of bias. That would be career-limiting to say the least.
Bias exists everywhere. It must, because none of us have the exact same prior experience and none of us have the exact same reasons for interpreting things we see or hear in exactly the same way. What matters, is that we control our biases and make each new choice and decision with as much weight on the current information as our lizard brains will allow.
Gerald R. (Jerry) Genge is the Principal of Arbitech ADR providing Expert Services, Neutral Assessments and Dispute Resolution on building design and construction disputes.
CONSTRUCTION DELAY CLAIMS - (ART OR SCIENCE) THE SAGA CONTINUES
By Antoine Aurelis, MSc., PQS, MRICS, FCIArb.
Project tracking, reporting, and analysis have experienced exponential growth in recent years. Technological improvements have impacted the construction industry and over time led to narrower specializations. The construction industry continues to see the emergence of more highly skilled and trained experts as increasingly sophisticated forensic software comes to market. Similarly, the growth of diverse views and opinions about the use of these tools has become more prevalent.
The diversity of opinion has transcended all facets of the industry including the legal and alternative dispute resolution systems. Although there is still no definitive position in law, the standard of proof required is that of ‘on the balance of probabilities’. Therefore, the onus is to show sufficient evidence to ‘tilt the balance’ (i.e., there is a higher probability that the said event caused delays to the project).
This discussion paper will explore differing opinions with respect to this contentious subject and the role of software as a sufficient evidentiary tool. The author’s conclusions are based on experiences in various jurisdictions and a review of the available literature.
The proper and effective use of such sophisticated software can be of enormous assistance to a party and ultimately help ‘tilt the balance’ in one’s favour. Proponents argue that, when a project is delayed, the Contractor is usually adversely affected and needs to be adequately compensated (time and/or money). This can be quantified scientifically using software specially designed to monitor and track projects.
John Barker Construction Limited v London Portman Hotel Limited 83
Held – ‘a fair extension of time called for a logical analysis of the impact of relevant matters in a methodical manner, ‘…I accept that the assessment of a fair and reasonable extension involves an exercise of judgment, but that judgment must be fairly and rationally based.’ Mr. Recorder Roger Toulson QC.
This case established a minimum threshold; it confirms the nature and extent of analysis required when determining entitlement for extension of time. In this matter, Critical Path Method (CPM) was deemed to be a fair and appropriate method to calculate a reasonable extension of time. It is likely that similar methods would have been acceptable and treated accordingly in that respect. The critical criterion as considered in this case is that of being logical and methodical.
The Society of Construction Law published official guidelines on the matter (see Delay and Disruption Protocol). Notwithstanding the provisions of the Contract Conditions, the Delay and Disruption Protocol recommends the following:
- Agreement on choice of software and approach to be employed.
- Constant and continuous monitoring and record-keeping.
- Contractor to inform the employer of events causing delay as soon as possible.
- Parties should deal with the impact of employer risk events as it occurs.
Most standard forms of contract (and bespoke agreements) require the Contractor to mitigate impacts of events on the project schedule. This contractual obligation also includes the effects of Owner risk events.
On the other hand, opponents are of the view that these scientific tools are too theoretical. Further, they have been criticised by the courts and practitioners for their inability to illustrate criticality and in some cases, can virtually ignore reality. Despite these arguments Contractors and their experts continue to use these tools to demonstrate delay impacts using visual aids.
Royal Brompton Hospital NHS Trust v Hammond 76
Held – “an assessment of entitlement to an extension of time did not depend upon any sort of scientific evaluation of any type of material but simply on impression formed on the basis of previous experience”, His Honour Judge Richard Seymour QC.
An endorsement of the impressionistic approach to delay analysis. This argument is further supported by the Commission on International Arbitration of the ICC, who express concerns with the objectivity of such analysis, stating that: “It quite frequently happens that many of the numerous assumptions that have been made in the construction of such retrospective networks are in the end so controversial that the network cannot be accepted by the Tribunal for the purposes for which it was created”.
The ethos of the myriad of scheduling software available is to analyse the impact of project events on the progress (disruption) and completion (delay) – Delay Impact Analysis. To this end, several approaches have been adopted, including the Critical Path Method, Global Impact Technique, Net Impact Technique, Snapshot Technique, Collapsing Technique, etc.
One must be mindful of the fact that the use of such aids in the preparation of claims is not an exact science.
Application of these tools requires one to exercise professional judgement, objectivity and independence when assessing their usefulness in preparation of a specific claim. The court or tribunal involved in the resolution of a dispute in respect of delay will invariably rely on one of the aforementioned or similar techniques along with testimony from a suitable expert (in some cases, the weighted testimony of more than one expert).
Use of such tools should not be assessed in isolation; the parties involved are in a contractual relationship, the terms of which must form a basis for resolving disputes relating to delay impacts. It is therefore imperative that the parties agree on the details with regards to the type and extent of use of such tools. Also, the need to practice fairness, discretion, and transparency cannot be substituted by any software.
Although it can be argued that software employs scientific processes, the outcomes rely sufficiently on input, which in some cases can be subjective (shall we say, “rubbish in – rubbish out”). As before mentioned, this is not an exact science and so the outcome will be just as subjective as the data fed into the process. “The application of an impressionistic rather than a calculated and rational assessment is not sufficient”, (Palles-Clark R, 2002).
The Courts and Tribunals are unlikely to rely solely on the results of such a potentially subjective process as sufficient proof of a claim. Independent and objective supporting documentation must accompany the resultant graphic aid generated by these tools. “It is always essential to consider the audience for the analysis, the cost benefit of adopting a particular method, and to find ways of communicating the results in a way that is both credible and readily understandable”, (Palles-Clark R, 2002).
Although such forensic tools are useful for both the analysis of delays and the graphical presentation in support of the basis for a claim, they must be adequately supported with project records and other pertinent information (drawings, schedules, instructions, reports etc.) amassed during the project.
Here lies the ‘art’ in delay analysis, where a keen knowledge of contract law must combine with practical understanding of the commercial aspects of construction management to enable successful evaluation of claims. Adequate consideration must be given to the probative value of the chosen technique for the given case to answer the following questions:
- Float – Who owns the float?
- Concurrent delays – Are there concurrent delays and how should they be treated?The definition of concurrent is evolving, therefore, defining concurrent delays may be subject to discussion and agreement by contracting parties.
- Global claims – Can claims be global and to what extent?
- Impact – Do the delays shown affect completion of works and to what extent?
McAlpine Humberoak Ltd v McDermott International Inc
Plaintiff – “…each instruction was critical and impacted in full upon completion date without considering the event in the context of what was actually happening at the time and without considering what other work was being carried out at the time.”
Defendant – “…a retrospective and dissectional reconstruction by expert evidence of events almost day by day…designed to show that the spate of additional drawings which descended on McAlpine virtually from the start of the work had little retarding effect on its progress”. Held – DISMISSED per Lloyd, LJ. “…in any analysis of project delays, the contractor is required to take into account realistic resource levelling”. It was unlikely for wholly theoretical calculations to succeed.
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd
It was decided that “the respondent was entitled to respond to the claim not by arguing that the variations, late information and so on relied on by the claimant did not cause any delay because they were not on the critical path and positively by arguing that the true cause of delay was other matters…”
“I am clearly of the view that, where there is an extension of time clause such as that agreed upon in this case and where delay is caused by two or more effective causes, one of which entitles the Contractor to an extension of time as being a Relevant Event, the Contractor is entitled to a full extension of time.” Mr. Justice Dyson.
Science or Art? The Quantity Surveyor in me says both; notwithstanding, contracting parties should be cognizant of the following:
- The need to observe Contract provisions.
- Make every attempt to deal with an incident as it occurs or as soon as possible thereafter.
- Presentations must be clear and support (a) Entitlement (b) Quantum.
- Such tools must be supported by relevant records (drawings, instructions, reports etc).
- Scheduling is not an exact science; all assumptions must be seen to be objective and fair. Remember, ‘rubbish in rubbish out.’
Although the views on the extreme peripheries of the pendulum are sometimes advanced, the preceding discourse demonstrates that an understanding of the legal principles governing delay analysis, appropriate approach, factual evidence, effective presentation, and transparency of procedure are the essential ingredients for the successful preparation of a construction claim.
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© Gerald R. Genge, P.Eng., C.Eng., BDS, BSSO, Q Med., C. Arb.
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