Proof of Delay – Garbage in and Garbage out – Lessons learnt from two prominent English Construction law cases

In most construction disputes involving an Extension of Time, Computer technology has played a vital role in modern construction projects and disputes, providing a more efficient way to identify the reasons behind project delays and calculate their effects on subsequent work performance.

The traditional manual and paper-driven approach has been replaced by computer technology, making it a lot easier to assess the effects of delays on the project’s timeline. However, it is worth noting that even before the widespread use of computers, people involved in construction projects, arbitration, and legal proceedings were able to comprehend planning information without the aid of computers.

The harsh scrutiny faced by expert planning witnesses in construction law cases such as Skanska Construction UK Ltd (Formerly Kvaerner Construction Ltd) v Egger (Barony) Ltd (Quantum)[1], discusses the importance of expert evidence being based on verifiable facts, while also balancing the need for efficiency and speed in legal proceedings. The scrutiny of expert witnesses in cases such as Skanska highlights the importance of adequate preparation and an independent duty to the court. It is suggested that the use of single joint experts may be appropriate for programming evidence.

It should be noted that while single joint expert reports would be desirable for Adjudication hearings, time constraints may make them unappealing to the Adjudicator and parties.

Although computer technology can be helpful in proving delay, it cannot be a substitute for factual information regarding the existence and impact of a delay.

In the case of  City Inn[2], the judge stated that ‘Expert ‘A’ had relied on the fact that in preparing his initial report he had a limited amount of time and relied on Expert B’s as-built programme for his analysis; at that time he had not seen the Clerk of Works’ diaries and weekly reports.[3]’ The pursuers were nevertheless critical of Expert A on the basis that he provided a detailed opinion on the basis of inadequate information.

The English courts maintain that while computer technology can be useful in demonstrating delay, it cannot replace factual information about the existence and impact of a delay.

If you would like an informal discussion about our construction dispute resolution services, then Contact Us.

[1] Skanska Construction UK Ltd v Egger (Barony) Ltd [2004] EWHC 1748 (TCC)
[2] City Inn Ltd v Shepherd Construction Ltd [2007] CSOH 190 at [29]
[3] City Inn Ltd v Shepherd Construction Ltd [2007] CSOH 190 at [29], per Lord Drummond Young (affirmed [2010] CSIH 68