Proving Delay and Disruption Claims

David Daly, Director at HD Construction Solutions, considers how to prove a claim

Introduction

In our last article we explained the difference between delay and disruption and will now discuss how you prove these claims. The terms delay and disruption are used interchangeably without much thought as to what they are, but this is understandable as the causes of both are so interrelated. Whilst delay claims relate to the project’s critical path and overall completion date, disruption claims relate to reduced productivity often caused by multiple employer related events. These disruptive events may or may not cause delay to the completion date, it depends on where they sit on the critical path. What then is the critical path of a project?

The critical path

The critical path is the longest sequence of activities on a project from its start to its completion. Provided the activities are appropriately sequenced and linked, any delay(s) to activities on the critical path, will cause a delay to the completion date. Delays to activities not on the critical path may cause the contractor to lose productivity (disruption) but will not necessarily cause delay to the completion date itself.

Proving your delay claim

The best way of proving a delay claim is identifying any delay(s) to the critical path. Easy right? Not so fast. Whilst in theory this sounds straight forward, the reality is very different. As we said in a previous article, the success or failure of your delay claim will come down to the quality of your records. The same applies to proving disruption.

Programmes

The best means of proving your delay and/or disruption claim is by maintaining an appropriately detailed programme from the outset of the project which is usually a contract requirement but is commonly overlooked. It is important that this programme is updated at regular intervals with accurate contemporaneous information. Note however, a programme is only as good as the information put into it. It must reflect the as built status of the project at the intervals for which it is maintained, usually monthly. Too often we see either (a) no programmes at all (b) programmes that do not reflect the original contract intent or (c) inadequately maintained/missing programme updates. Even where programmes are provided, they are often treated as a box ticking exercise to comply with the contract’s reporting requirements and often contain inaccurate logic and start/finish dates.

Retrospective corrections

Retrospectively correcting poorly maintained programmes is a very time consuming and costly process and can be avoided if some simple measures are taken from the outset. We recommend (a) the regular submission of appropriately detailed progress reports, whether or not the contract calls for them, (b) taking of photos and videos of the progress of the works clearly setting out locations, dates and times they were obtained, (c) the use of integrated progress monitoring software such as Snag R, there are plenty of others available now, (d) designating a member of staff to undertake this role at regular intervals, whether office or site based and (e) issue this information with contractual notices to the employer contemporaneously. All too often we see instances of contractors not wishing to upset employers meaning they refrain from issuing appropriate notices and records, even though they are available.

No programme is not fatal but it will help

Whilst we do place a strong emphasis on properly maintained programmes, the courts are not afraid to take a commonsense approach in their absence, but they will not take a wild guess – they need suitable evidence. An employer providing late possession to a site does not need a fancy programme. However, it is more common for delay and disruption to arise well into the construction phase of the project and this is often where complications arise when multiple activities are undertaken simultaneously. Well maintained records are essential for filling these gaps. The courts will not be impressed with programmes containing contrived logic to suit fit a contractor’s delay. Further, delay and disruption analyses are often subject to expert evidence so any activities, durations and logic not supported by appropriate contemporaneous evidence such as concrete pour records, witness tests, photographs etc. will only undermine your case.

In the next article we will discuss proving losses associated with delay and disruption claims.

Disclaimer: this content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by HD Construction Solutions Ltd.