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Common Law Case Law relating to 4 delay techniques

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A. F.
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Hi,

Does anyone know of any cases from any common law jurisdictions that either reject or recommend a particular delay analysis method (i.e. as built v as planned, etc).

I have an understanding of the UK’s fairly limited discussions on the subject but would appreciate knowing what other countries say on the issue.

Any cases from the USA, Oz, Canada?

Cheers.

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Andrew Flowerdew
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Hi David,

Think we’ll forgive you. Know what you mean though.
David Bordoli
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Hi Andrew...

Oooops... as I said I was on a quick dash through PP so I obviously didn’t read the question properly - my apologies to all.

Yes, long time no see. I stopped visiting in the end because of the direction PP seemed to be going. I realise Charlie has gone, which was a big bone of contention but in the main the forum still seems to me to be a Primavera help desk.
Andrew Flowerdew
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David,

Long time no see. Was thinking more about foreign jurisdictions more than England but another one for the English list is a Court of Appeal case that strongly supports a TIA type analysis - McAlpine Humberoak -v- McDermott 1992.

City Inn - the question is should the judge have thrown the case out for lack of evidence. Personally wish he had, (not being tough on contractors here), but similar to Lord Denning in Amalgamated Builders -v- Waltham Holy Cross in 1952, the message sent out may have an adverse affect on project management standards.

It was Lord Denning who decided, (quite rightly in the circumstances), that EoT’s could be granted retrospectively after completion. Until then it was generally the case that the courts view was that EoT’s should be granted during the project so as to give the contractor something to aim for.

After Lord D’s decision, there followed 40 years of leave it all to the end style project management. Ironically the general thrust today is to sort it as you go - full circle to where we were and what was considered good practice 100 years ago!!!!!!

I can’t see City Inn encouraging better record keeping or programming standards, completely the opposite.
David Bordoli
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Just a quickie...

Skanska -v- Egger - techniques were kinda intimated (there was a discussion here that KP bailed out of a few years back when we were trying to get to the bottom of the techniques.
My understanding, speaking to Jim Simpson is that KP used Time Impact Analysis (hence the voluminous documents) and JS used As-Planned -v As-Built

Mirrant -v- Ove Arup - some good discussion on critical path analysis in general and more detailed discussion on ’Windows’.

City Inn -v- Shepherd - read the opinion not just the headlines and comments on the case. You will see there is discussion about methods and what the experts wanted to use but could not because of the data that was available.

Barker -v- Portman Hotel - a classic case for the oft cited the application of an impressionistic rather than a calculated and rational assessment is not sufficient . Speaking to one of the solicitors on the case and one of the experts this was an early battle between As-Planned Impacted and As-planned -v- As-Built.

Apologies if I have got some of the references and spellings incorrect this was an unscheduled stop on the forum!
Andrew Flowerdew
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A.F.

The other sources for delay techniques is the (UK) SCL Protocol and the (USA) ACCER RP document.

Both very helpful but note that the ACCER document does not cover what is generally accepted as the "TIA" method in the UK, (which could be described as a more rigorous and enhanced type of analysis than windows that also deals with concurrency issues).

As far as additive impact type techniques, (ie add in activities to the schedule), the most advanced method it covers is the "windows" methodology as we would know it in the UK. That said Section 2 of the ACCER document contains some handy guidance that is applicable to all types of analysis.

Andrew Flowerdew
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A.F.

I have a lot of case judgments from those countries but I would read something more general first.

USA, Aus, etc are federal states and so have state law and an over arching federal law. You’ll find the approach can vary slightly in different states and then again at a Federal level - so reading a few cases may or may not be representitive of the general approach.

There’s a couple of good papers on the Society of Construction Law website regarding the general approach in the USA that may be of interest.

As far as actually ascertaining if an EoT is due, it’s duration and what proof is needed, there isn’t much difference within the common law world, although Scotland has now probably gone out on it’s own.

The difference generally comes when assessing compensation for an Eot, can the contractor claim money or not and on what basis. This is where the significant differences lie, (the SCL Protocol follows American law in some respects), and again Scotland has departed from the UK norm - according to Lord MacFaden by following the American approach but unfortunately this isn’t the case.

LD’s are another story all together.
Mike Testro
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Hi A. F.

If you have an understanding of the UK discussions on this subject I would be much obliged if you could pass it on.

The only cases I can recall where specific EoT methods were mentioned was where As Built But For was demolished.
(Great Eastern v Laing & Shepherd v City Inns)

Interesting thread though - see what response you get.

Best regards

Mike Testro