Construction Law | Dispute Resolution | Procurement | Training Dealing with Delay: The Do’s and Don’ts London +44 (0)20 7022 2192 London@QuiggGolden.com Dublin +353 (0)1 676 6744 Dublin@QuiggGolden.com Belfast +44 (0)28 9032 1022 Belfast@QuiggGolden.com Maidstone +44 (0)1622 541 700 Maidstone@QuiggGolden.com Quigg Golden

Here Today William Brown BEng (Hons) MSc CLCM MIEI ACIArb GMICE Senior Associate William.Brown@QuiggGolden.com William Brown Admiral_Brown

Agenda Dealing with Delay The Different Types of Delay How RIAI/PWC Deal with Delay Making up for Lost Time

Same S#*t Different Project Time Cost Quality

Welcome to Construction The Perpetual Cycle Welcome to Construction

The Different Types of Delay

The Different Types of Delay Excusable delay Time only Time and money Non-excusable delay Concurrent delay Non-critical delay Discretely Defined Loosely Defined 13(+4) Time + Money Events 4(+4) Time Only Events 5 Time + Money Events 5 Time Only Events

Demolition Substructure Superstructure Commissioning Landscaping Completion Date Resources

Time & Money Event Time Only Event ?? Demolition Substructure Superstructure Commissioning Landscaping Completion Date 4m EOT Abortive Costs Disruption Loss of Productiv. Standing Time OHP Resources ??

Non-Critical Delay Demolition Substructure Superstructure Commissioning Landscaping Completion Date Busier site = prelims thickening Resources

Disruption Demolition Substructure Superstructure Commissioning Loss of productivity Commissioning Landscaping De-mob Re-mob De-mob De-mob Completion Date Extra Trade Interfaces Busier site = prelims thickening Resources

What Does the Contract Say?

Dealing with Delay – RIAI Clause 30 (a)-(j) = 10 events that give rise to EOT Only 5 give rise to additional money as well (b) = delay in giving possession (clause 28) (f) = Architects Instructions (clause 2) (g) = Late instruction from Architect (i) = Delay by others engaged by Employer (j) = Employer’s act of default (clause 29)

Dealing with Delay – RIAI (b) = delay in giving possession (clause 28) “Contractor shall be entitled to receive from the Employer compensation for any loss incurred due to dislocation of the Contractor’s organisation” Burden of proof? … we will return to what “loss” means

Dealing with Delay – RIAI (f) = Architects Instructions (clause 2) Clause 2(a)-(i) lists 9 types of Architect Instruction Clause 2(a) = Variation = Ascertained under Clause 13 Otherwise, ascertained via loss or expense Variations = Clause 13 All other AI’s = Loss or Expense

Dealing with Delay – RIAI (f) = Architects Instructions (clause 2) Clause 13 = the valuation rules for Variation If character/conditions of work is similar = BOQ rate If character/conditions of work is NOT similar = BOQ rate with reasonable adjustment If a reasonable adjustment cannot be made = Fair Valuation If the measures above don’t work = Daywork Prices

One of my favourite cases… Henry Boot v Alstom Combined Cycles 1999 Discusses the use of BOQ rates Good definition of “Fair Valuation” “the contract rates and prices are sacrosanct... immutable… even if too profitable or uneconomic”

One of my favourite cases… Henry Boot v Alstom Combined Cycles 1999 Discusses the use of BOQ rates Good definition of “Fair Valuation” “A fair valuation means… actual costs reasonably and necessarily incurred plus OHP”

Dealing with Delay – RIAI (j) = Employer’s act of default (clause 29) “If any act of the Employer delays progress of the Works… the Employer shall pay or allow to the Contractor such damages as the Contractor shall have incurred by the delay” Notify with in 5 days… or… Act of default? What damages are recoverable?

“Loss” “Expense” “Damages” “loss and expense” = common law damages = Wraight v PHT 1968 Interest is payable on a loss and expense claim = FG Minter v Welsh 1981 Can include head office overheads = Tate & Lyle v GLC 1982 Loss of profit, if you can prove it = Peak Construction V McKinney 1971 CASE LAW WARNING

Lets take a trip through time… Hadley v Baxensale 1854 Victoria Laundry v Newman 1949 Damages Naturally Arising “Special” Damages

Dealing with Delay – PWC Clause 9.4 – Programme Contingency A complicated mechanism Two thresholds (look at Schedule 1K) Contractors should programme it in Deemed to be included

Dealing with Delay – PWC Threshold 1 Threshold 2 Full EOT Half EOT No EOT

Dealing with Delay – PWC Clause 10.3 – Contractor Claims CONDITION PRECEDENT Notify within 20 Working Days Give further particulars Clause 10.7 – Delay Cost Expenses incurred; OR Daily rate of delay cost in Schedule 2D

A Mantra to Live by… Max Abrahamson, Engineering Law and the ICE Contracts, 4th Edition: “A party to a dispute… will learn three lessons (often too late): the importance of records, the importance of records and the importance of records. It is impossible to exaggerate the extent to which lawyers can find unexpected grounds, often quite real, on which to cast doubt on evidence if it is not backed up by meticulously established records”

Tips for Practice Records, Records, Records Contractors need to prove that: The delay event occurred The contract permits you to claim for that event The notices required by the contract have been given What the effect of the event was Planned v Actual

EOT under JCT William’s

William’s Top Tips Read your contract and highlight “Time only” delay events “Time and money” delay events Notification requirements Ensure site team understands the importance of notifying Records, Records, Records Don’t scramble your eggs… Lack of Access Change Order Your delay claim

Construction Law | Dispute Resolution | Procurement | Training Thank you Please keep in touch William Brown Admiral_Brown London +44 (0)20 7022 2192 London@QuiggGolden.com Dublin +353 (0)1 676 6744 Dublin@QuiggGolden.com Belfast +44 (0)28 9032 1022 Belfast@QuiggGolden.com Maidstone +44 (0)1622 541 700 Maidstone@QuiggGolden.com Quigg Golden