1. Construction Law | Dispute Resolution | Procurement | Training
Dealing with Delay: The Do’s and Don’ts
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2. Here Today William Brown BEng (Hons) MSc CLCM MIEI ACIArb GMICE
Senior Associate
William Brown
Admiral_Brown

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

4. Same S#*t Different Project
Time
Cost
Quality

5. Welcome to Construction
The Perpetual Cycle
Welcome to Construction

6. The Different Types of Delay

7. 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

8. Demolition Substructure Superstructure Commissioning Landscaping
Completion Date
Resources

9. 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 ??

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

11. 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

12. What Does the Contract Say?

13. 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)

14. 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

15. 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

16. 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

17. 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”

18. 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”

19. 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?

20. “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

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

22. 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

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

24. 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

26. 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”

27. 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

28. EOT under JCT
William’s

29. 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

30. Construction Law | Dispute Resolution | Procurement | Training
Thank you
Please keep in touch
William Brown
Admiral_Brown
London
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Dublin
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Belfast
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Maidstone
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Quigg Golden