On Episode 4 of the Helix Essential Series we were fortunate to have Ian Townson as our weekly Wednesday afternoon guest. Ian is the Principal and Expert Witness for King Planning which offers services in construction planning and dispute experts.
With over 30 years of experience in the industry, Ian shared his insights while discussing the impacts of delay and loss of productivity on projects, especially during these challenging times.
The Dark Arts of Delay
Programme and delay analysis has often been described as ‘the dark arts.’ Ian refers to a prominent paper written by David Barry for the UK Society of Construction Law, Beware the Dark Arts! Delay Analysis and the Problems with Reliance on Technology. The paper provides valuable insight into the ‘magic and tricks’ that can be undertaken to disguise delay or set delays aside by way of creative modelling and analysis.
Ian’s take on this view is that analysis should not be seen as a dark art and that it should come down to the facts and the evidence to those facts.
Approach of the courts
During the conversation, a question from the floor posed to Ian whether he had observed any development in the way the courts assess delay claims. Ian’s response was that the system is always changing but there have been some pivotal cases in the last 10 years. Two noteworthy cases mentioned by Ian include:
While this was a common law case seeking general damages, it provided useful insights into the programming analysis for delay claims. The test here was identified as if there was actual evidence which established on the balance of probabilities that the claimed event caused the project to delay. Each of the respective experts came to different results using different programming methods. White Constructions expert used the “as-planned versus as-built windows analysis” method whereas SWC/IWS’s expert used the “collapsed as-built/but for analysis” method.
- Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Limited (WICET)  QCA 12
As Ian identifies in the below video, this case focused on how the contract was structured and specifically what methodology should be used in the calculation of factors such as extensions of time. They applied a ‘prospective method’ which is best described as a forward-looking approach. Rather than a ‘retrospective method’ which looks back to reconstruct what happened.
Ian commented that there is a trend in the courts that favour the retrospective method of calculation, however, this will always depend on the construction of the contract.
You can watch Ian talk about the different approaches in answer to a question from the audience:
Quick communications in 2020 and beyond
Ian warned against the rise of quick communications and the role it plays in demonstrating actual events on a Project. Most contracts will set out a strict procedure and programme for notices and responses under the contract. When casual and quick correspondence is sent, it is often without regard for these processes or even the content of a text message or an email. The emergence of systems such as Aconex has made strides to assist with the contractual procedures, however rogue and relaxed emails sent as side conversations can still cause issues when dealing with a dispute regarding delay.
New issues post-COVID
In the emerging post-COVID world, Ian listed some of the new challenges facing the construction industry including immediate productivity and delay issues and getting used to the new normal. These issues may lessen with the ease of restrictions, but only to a certain extent. New health and safety conditions and restraints for social distancing will likely remain for some time. This not only has impacts in our current environment but will also continue into the Government’s rollout of infrastructure projects to help support the economy.
While much of the conversation has been supportive, there may be a ‘day of reckoning’ on the horizon. When projects that were on foot when the crisis peaked hit the bottom line over the latter half 2020 and into 2021, this is when disputes will arise.
Practical tips for loss in productivity
Ian shared some of his practical tips for loss of productivity that may be of benefit down the track should these disputes arise. Disruptions have already caused significant impacts on onsite productivity due to new health and safety obligations such as social distancing. Ian gave common examples such as Alimak lifts that would usually carry 6 to 7 people that can now carry only 1, staggered smoko breaks and difficulties moving materials through buildings.
Records need to be kept of where trades are working and their movements while on site in order to be able to support any future claim. These records should include written records and annotated photographs to ensure details are accurately recorded.
Play the short game but think long
Before the pandemic even began, Ian has commonly voiced a saying that all professionals in the construction should:
Play the short game but think the long.
This refers to his experience that while people should be maintaining their project relationships, they should also be maintaining their contractual rights. The beginnings of a project can be described as a honeymoon phase, where all the parties are excited for the project and everyone is getting along. However, all it takes is for one thing to go wrong and thing can start to deteriorate quickly. By maintaining your contractual obligations, you ensure that you are always prepared for the long game, even if you never have to play that hand.
The power of information
As an expert witness, one of the major mistakes Ian sees in the industry is a lack of records that can be produced during a dispute. The act of having to reconstruct a timeline with fragmented evidence can be time consuming and expensive. The power and benefit of collecting regular and accurate information as you go ensures that you are prepared should any issue arise. Whether this is added as an extra resource on site or included in the site manager duties, the return on this investment is worth the effort and covers any liability.
Final thoughts for those leading projects today
Ian provided several tips for the delays and impacts arising from the current COVID-19 climate. Two takeaways included:
- Setting up your system for collecting records such as daily diaries and annotated photographs. These records should specifically track any issues and works completed. Records should also be kept of the labour force and how things are being rolled out between the trades.
- Make sure notices are being issued as you progress along the project timeline and that they comply with any requirements under the contract.
If you would like to hear from our conversation with Ian, click here to view our full playlist of clips on the Helix Legal YouTube channel.
We have also uploaded each episode of the Series to date on our channel for you to re-watch anytime.
Michael Chesterman goes live on Facebook and Zoom every Wednesday at 4:00 pm on the Helix Essential Series. To tune in for future episodes, visit the Essential Series page on our website for our upcoming guests and topics.Not intended as legal advice. Read full disclaimer.