A Critical Evaluation of preferred Delay Analysis Method used in Extension of Time claims - Case Law
For every Forensic Planner / delay analyst out there, a mind boggling question remains regarding which methodology to use during interim claim submissions or Final Claim submissions with Client / Tribunals / Expert reports. Overwhelmingly, there are instances when Delay analyst blindly chooses one method where he/she/they might feel stronger than any other methods, ignoring the fact that there could be more suitable method out there but can be ignored due to the lack of knowledge of its actual implementation. I suggest to refer AACE Recommended practice 29R-03 to arrive at suitable delay analysis method. In my quest to hunt down a most preferred delay analysis method with continuous research and increasing interest to dissect legal cases related with Construction Delay Claims, I came across some of the following findings. Off-course, it is a commencement of the use of Data Analytics and visualization in the Construction Claims arena. For this Endeavor, I thank Robert Gordon University for their library access to multiple legal databases across various global jurisdictions in United States of America, Australia, United Kingdom, Canada and Hong Kong.
The Legal databases referred were:
b) Westlaw International
c) Lexis Library
d) Hein Online
e) British and Irish Legal Information Institute (Bailii)
g) Hein Online
h) Australasian Legal Information Institute (AustLii)
These legal databases were filtered with the factors as given below to study the cases decided by the Court
I. Relevant Field: Construction
II. Exact Phrase Match: Schedule Delay
III. Disputed matter: Extension of Time
IV. Availability of detailed commentary of Claimant and Respondent: Yes
I found out various Construction Claims related cases from the year 1968 till the year 2019 from below jurisdictions and respective authorities
A) The United States of America: following court / administrative bodies are identified where Construction Claims related cases were contested and settled, such relevant cases were filtered out from the legal database using above criteria.
i) ASBCA: American Services Board of Contract Appeals
ii) AGBCA: Department of Agriculture Board of Contract Appeals
iii) CBCA: Civilian Board of Contract Appeals
iv) DCCAB: District of Columbia Court of Appeals Board
v) DOTCAB: Department of Transportation Board of Contract Appeals
vi) ENGBCA: The Corps of Engineers Board of Contract Appeals
vii) LBCA: Department of Labor Board of Contract Appeals
viii) VABCA: Veterans Affairs Board of Contract Appeals
ix) GSBCA: General Services Board of Contract Appeals
As seen from the below graph, delay claims cases are dominated by Time Impact Analysis as a preferred Delay analysis method with 65% of the cases either settled by the Court in favor of the party using TIA or its variations, followed by As-Built Critical Path and As-Planned Vs As-Built. Following is the USA wide ranking of preferred delay analysis methods.
Rank 1: Time Impact Analysis Method (with its different variations): 64 % of the cases
Rank 2: As-Built Critical Path Method: 12%
Rank 3: As-Planned Vs As-Built Method (also known as Total Time Claim): 11 %
Rank 4: Collapsed As-Built Method (also known As-built but-for Analysis): 6 %
Rank 5: Jury Verdict: 5 %
Rank 6: Impacted As-Planned method: 2 %
Notable observation: The use of Jury Verdict method is quite popular in the USA and often seen it on complex Construction Claims cases.
B) United Kingdom (UK)
UK is breeding ground for widely known SCL Delay and Disruption protocol, highly used for Construction Contract administration and Claim preparation works. Following judiciary takes active role in deciding Construction disputes in UK
i) TCC (Technology & Construction Court), England & Wales High Court
ii) Queen’s Bench Division, England & Wales High Court
iii) Court of Sessions – Outer House, Scotland
It is observed that majority of the striking decisions given by TCC, following ranking shows successful application or intended use in the UK
Rank 1: Time Impact Analysis Method (with its different variations): 60 % of the cases
Rank 2: As-Planned Vs As-Built Method (also known as Total Time Claim): 20 %
Rank 3: Impacted As-Planned method and As-Built Critical Path Method: 10 % each
Remaining method - Collapsed As-built is not successful even though applied at many instances, also it did not sustain in the appeals to claim. It is noted that like USA, Jury Verdict method is not popular in UK.
i) Federal Court of Australia
ii) Queensland Supreme Court
iii) Victorian Supreme Court (Trial Division)
iv) Victorian Supreme Court (Court of Appeals)
v) Western Australian Supreme Court (Trial Division)
vi) New South Wales Supreme Court
Rank 1: Time Impact Analysis Method (with its different variations): 50 % of the cases
Rank 2: As-Built Critical Path Method: 25 %
Rank 3: As-Planned Vs As-Built Method (also known as Total Time Claim): 17 %
Rank 4: Impacted As-Planned method: 8 %
Remaining method - Collapsed As-built is not successful even though applied at many instances, also it did not sustain in the appeals to claim. It is noted that unlike USA, Jury Verdict method is not popular in Australia.
i) Alberta Court of Queen's Bench
ii) British Columbia Supreme Court
iii) Federal Court - Trial Division
E) In Hong Kong
i) Hong Kong Court of First Instance
ii) High Court
The combined studies of the delay claims cases in Canada and Hong Kong shows below ranking according to the preference of delay analysis methods
Rank 1: Time Impact Analysis Method (with its different variations): 57 % of the cases
Rank 2: As-Planned Vs As-Built Method (also known as Total Time Claim): 29 %
Rank 3: Impacted As-Planned method: 14 %
Remaining method - Collapsed As-built & As-Built critical path methods appears not successful in Canada & Hong Kong even though applied at many instances, also it did not sustain in the appeals to claim in higher courts. With 57% of the cases either settled by the Court in favor of the party using TIA or its variations, followed by As-Planned Vs As-Built & Impacted As-planned.
After consolidating above data globally, I found below ranking of preferred choices in deciding cases successfully, where the Courts explicitly stated suitable method that should be used in purview of submitted claims and counterclaims from Claimant and Respondent, while in some instances court stated inconsistencies observed in the loosing party’s delay claim and suggested a Delay Analysis Method accordingly.
Rank 1: Time Impact Analysis Method (with its different variations): 62 % of the cases
Rank 2: As-Planned Vs As-Built Method (also known as Total Time Claim): 14 % of the cases
Rank 3: As-Built Critical Path Method: 12% of the cases
Rank 4: Collapsed As-Built Method (also known As-built but-for Analysis) Impacted As-Planned method: 4 % for each method
Rank 5: Jury Verdict: 4 % of the cases
Further, I would like to access Legal Cases which are settled under Indian Jurisdiction in order to perform such analysis to contemplate most preferred delay analysis method over time. I would really appreciate if any techno/legal expert provide input to locate case laws in Indian Construction disputes. Also, please comment if someone can provide information regarding access for various cases filed & settled with various arbitration tribunals and their summary commentary from ICC, LCIA, DIAC, SIAC, HKIAC etc.
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The views expressed in this article are those of the Author and do not reflect or represent the official policy, position or recommendation of any individual or organization. Any written or verbal recommendation has a general nature and should not be used for any decision making without further assessment for specific project and organization requirements.