Issue Spring 2013
TECBAR
The Newsletter of the Technology and Construction Bar Association
From the Chairman
TECBAR was founded in 1983 and has reached the grand
old age of 30 this year. We are taking the opportunity of
our Annual Party to celebrate. Please keep the date free
and join us: Thursday 11 July at Skinners Hall. Details of
how to apply for tickets will be circulated soon. The 1980s
was an era in which specialist practitioners believed that
there was a need for representative bodies, which focused
on their interests and which promoted their needs. In the
same year, 1983, the SCL was founded, and a few years later,
in 1989, COMBAR was founded. TECBAR’s objects include
advancing the interests of the users of the TCC (called in
1983 the Official Referees’ Court), to protect and promote
the efficiency and standing of the Court, to promote the
reform of law and procedure, in particular that associated
with arbitration and ADR, to promote good relations with
other professional bodies, to promote ways of reducing the
length and cost of disputes, and to represent the interests
of its members and to provide CPD for barristers practising
in the TCC. There have been many changes to our court in
the last 30 years, including the name change, reflecting
more accurately the work, the elevation of the judges to
the High Court bench, acknowledging the substantial work
carried out in the TCC, and the new location as one of
a number of specialist Courts in the business court, the
Rolls Building. Much work was done by my predecessors,
together with TeCSA and the SCL to encourage and facilitate
these changes. TECBAR remains important to the profession
and I have no doubt that there will be challenges in the
future, which will require the lobbying and input of the
profession. TECBAR’s 2013 AGM will be on Thursday 11 July,
shortly before the Annual Party. Members have recently
been circulated the timetable for the TECBAR election and
I encourage people to consider standing.
I hope that by the time this Review has gone to print, our
new website will be up and running. I encourage members
to have a look and to let us know what they think. One
feature of the website will be podcasts of recent events.
Ramsey J gave a very topical lecture addressing the new cost
reforms which came into effect this April at the recent joint
TeCSA/TECBAR event. In light of the real interest shown by
the membership in this topic we recorded the lecture and it
Informa Law Spring 2013
TECBAR
Review
Issue Spring 2013
in association with
will be available as a podcast on the new TECBAR website.
We are looking into whether it is possible to arrange CPD
accreditation for members downloading such podcasts in
the future. Further, once the new website is up and running
we will be writing to members inviting them to consider
applying to join the TECBAR Dispute Resolution panels. The
letter will identify the process and the criteria for selection.
The next TECBAR Adjudication Accreditation Course will be
held on 6th July 2013. Details will be circulated shortly, but
I am delighted to confirm that Coulson J has agreed to give
the keynote speech.
Chantal-Aimée Doerries, Chairman
From the Editor
Spring has finally sprung, bringing with it this latest issue
of the TECBAR Review. Edmund Neuberger provides a note
on the recent Ampleforth v Turner & Townsend case,
which provides something of a case study in respect of
claims against project managers.
Sanjay Patel attended the “Dispute Resolution in the
International Oil and Gas Business” conference in Delhi,
thanks in part to the funding offered by TECBAR and the
Bar Council. He reports on his experience and lessons
learned.
Paul Darling QC gives a fitting and very personal tribute
to His Honour John Toulmin CMG QC.
Finally, John Marshall of EC Harris offers his observations
on Akenhead J’s approach to delay analysis in Walter
Lilly v Mackay.
I hope you enjoy this issue of the Review.
Mark Chennells, Editor
List of Contents
HHJ Toulmin CMG, QC Obituary 2
The Trustees of Ampleforth Abbey Trust v
Turner & Townsend Project Mgt. Ltd. 2
Opportunities for the English Bar in India 5
Delay Analysis in Walter Lilly v Mackay 6
1
TECBAR
His Honour John Toulmin CMG, QC
John Toulmin was a remarkable man.
When giving the inaugural Toulmin Lecture in Law and
Psychiatry, which came into being as a consequence
of John’s long and distinguished connection with Kings
College, London and the Maudsley Hospital, the Lord Chief
Justice said:
“John Toulmin was my friend. He was a man who had
many friends. Their vast number did not diminish
the depth of friendship enjoyed by each and every
one of us. His friends came from all over the world.
Friendship with him knew no bounds of distance or
nationality or race.”
It is difficult to put it better.
The tributes to John have all highlighted the
astonishing breadth of John’s life. This is not the place
to record each of them save to mention perhaps his
chairmanship of the Board of Trustees of the Academy
of European law in Trier for 13 years and his steadfast
dedication to the Middle Temple and the Temple Church.
His book – Expanding the Horizons: on Active Service in
Law and Education – is a remarkable read testifying to
The Trustees of Ampleforth Abbey Trust v Turner & Townsend Project
Management Limited
The Claimants in the case were the Trustees of the
Ampleforth Abbey Trust, responsible for Ampleforth
College, the co-educational, independent day and
boarding school run by Benedictine monks in North
Yorkshire (“the Trust”). The Defendant was the project
management arm of the construction professional group,
Turner & Townsend.
Over the course of five years, the Trust undertook
three construction projects at the school providing
new boarding accommodation. The contractor, Kier,
commenced work on the third project site in December
2003 with an anticipated completion date of the
26  November 2004. For various reasons, these works
were completed 15 weeks late on the 21 March 2005,
giving the Trust an expectation that they were entitled
to £750,000 liquidated damages from the contractor
resulting from the delay.
In fact, the Trust were provided with advice from
two arms of the Turner & Townsend group, project
management advice from the Defendant company and
cost management advice from Turner & Townsend Costs
Management. However for the purposes of litigation,
it was agreed that the distinction between the two
companies was over complex and, given the claim
2 Informa Law
Issue Spring 2013
the number of causes and organisations with which he
was involved.
John was passionate about being a Judge of the
Technology and Construction Court. The evolution and
future of that Court was of the greatest importance to
him. He held strong views about the Court’s organisation
and about the best way to achieve effective case
management. It was genuinely a mark of the man that
during the heavy difficult debates about the future of
the court, when he, as a Judge of the Court, and I, as
a representative of the profession, held different views,
he never once allowed that difference to be a source of
awkwardness in our considerable friendship.
It was a tragedy that his retirement and the onset of
serious illness should coincide. Of course, no one should
have been surprised by the stoical way in which he coped
with his illness.
John Toulmin was a true polymath. I confess to great
pride at being able to call him my friend and I miss him
dreadfully.
Paul Darling QC, Keating Chambers
related to Turner & Townsend’s role as project manager,
the parties dispensed with the distinction between the
potential defendants.
The single most striking feature of the works was the
absence of a formal written contract. Tendering and
negotiation had been on the basis that a JCT contract
would eventually be executed. In the event however, the
Trust issued, upon the advice of Turner & Townsend, a
series of some eight Letters of Intent. The absence of a
formal written contract and Turner & Townsend’s failure
to exercise sufficient focus on the matters holding up
execution of the contract or to exert sufficient pressure on
the contractor to finalise the contract (see para 10 of the
judgment) formed the central plank of the dispute before
HHJ Keyser Q.C.
Traditional building contracts and previous editions of
construction law texts endeavour to identify clear and
readily ascertainable demarcations between separate
professionals regularly involved in construction works.
From architects to engineers to quantity surveyors, each
profession appeared to have a distinct role unique to it,
and the edges of which had been tested by the common
law. With the advent of new construction professionals
such as project managers, programme managers, cost
Issue Spring 2013
managers and risk managers, the boundaries and remit of
these roles now appear blurred.
As regards project management, a now common role,
it was noted in the judgment “it may be impossible,
in any event, to define with precision the expression
‘project manager’ (Para 76). The starting point is, of
course, the terms of the appointment. There are however,
two principal themes that may be drawn out from the
case law.
First and foremost, the project manager’s role is that
of a guardian of his client’s interests. Although this may
appear clear on its face, the true meaning of the obligation
depends, amongst other things, on the circumstances
and objectives of the client. Clearly, this is something of
a dynamic obligation. Construction works do not always
go to plan. As such, the best interests of the client may
shift, requiring continuous review by the project manager
to identify the most advantageous course of action for
the client.
Secondly, the role of project manager is not one of
part time consultant, dipping in and out of the project
as he sees fit. The role of project manager is one of
co-ordinator, as well as guardian, of his client’s interests
(see Royal Brompton v Hammond (No. 9) [2002] EWHC
2037) giving him a unique, and potentially onerous,
overseeing role. As with any professional, knowledge
of his limitations is essential. By way of example, if
a project manager is not able to give advice on the
adequacy of an insurance arrangement proposed by a
contractor, he may either advise the client that advice
from a lawyer or broker is necessary (see Pozzolanic
Lytag v Bryan Hobson Associates [1998] EWHC 285) or
he may wish to procure that advice himself for the
benefit of his client. In the example of the insurance
arrangement, the project manager may not simply
pass on details of the proposed arrangement without
comment or warning. He must act as a co-ordinator and
guardian of the client’s interests rather than a simple
“post box” merely passing information back and forth
between the parties.
In the present case, the Trust advanced three particular
allegations of negligence against Turner & Townsend:
a. failing to advise the Trust of the limited protection
afforded by letters of intent;
b. failing to advise the Trust of the increasing risk that
the repeated issue of letters of intent would make it
less likely that the contractor would execute the JCT
contract; and
c. failing to take or to advise the Trust to take action in
procuring the execution of the JCT contract.
It was not, for obvious reasons, advanced that Turner &
Townsend were under any kind of absolute obligation
Informa Law
TECBAR
to guarantee that a JCT contract was in place with
the contractors.
Previous cases have provided stark reminder of the
importance of “more haste less speed”. One of the first
judgments from the Supreme Court, RTS Flexible Systems
Ltd v Molkerei Alois Müller Gmbh & Co KG [2010] UKSC 38,
declared that the moral of the story was “to agree first
and to start work later”. Similarly the substance of the
judgment in the present case was no less clear with the
message that an executed formal written contract was
of central importance: (at para 97).
“In the performance of TTPM’s role as ‘co-ordinator
and guardian of the client’s interests’, efforts to
finalise the contractual arrangements were of
central importance. The execution of a contract
is to be seen not as a mere aspiration but rather
as fundamental. It is the contract that defines
the rights, duties and remedies of the parties and
that regulates their relationships. Standard-form
contracts, such as the JCT contracts, are precise,
detailed and structured documents; their elaborate
nature reflects the complexities of the projects to
which they relate and attempts to address the
many and varied problems that can arise both
during the execution of the works and afterwards.
By contrast, letters of intent such as those used in
the present case are contracts of a skeletal nature;
they pave the way for the formal contract, once
executed, to apply retrospectively to the works
they have covered, but they expressly negative
the application of most of the provisions of the
formal contract until it has been executed. They do
not protect, and are not intended to protect, the
employer’s interests in the same manner as would
the formal contract; that is why their ‘classic’ use
is for restricted purposes.”
Clearly, the judiciary are not attempting to coerce
construction professionals into a position whereby
work can never commence without a properly concluded
contract and letters of intent become obsolete.
Conversely, a consistent message does appear that
the parties need to turn their mind to formal written
contracts at an early stage of works, if they cannot be
agreed beforehand.
However, as was submitted by counsel on behalf of
Turner & Townsend, it was not incumbent on the project
manager to “play the dangerous game” of issuing an
ultimatum to the contractor: refuse to issue a letter of
intent and risk the contractor walking off site. In fact, the
Judge found that the contractor would have signed a JCT
contract with particular terms, but the proposition that a
project manager could not bring matters to a head was
rejected for a number of reasons.
3
TECBAR
First, that proposition appears to support a position
that a project manager can avoid confrontation and wait
for the contractor to take the initiative. Just as a project
manager is not able to act as a postbox, equally a project
manager may not simply wait for the contractor or
someone else take the initiative. Secondly, as a finding
of fact, the contractor had, as part of the discussions
to obtain further letters of intent, threatened to walk
off site. In the event, the contractor did not walk off
site and had, for a few months of work, undertaken
work on site without the comfort of a letter of intent.
Seemingly the judge was implying that as a matter of
commercial reality the contractor’s threats to walk off
site were empty ones. Thirdly, given the importance
for the employer, there comes a time when the project
manager must make it clear that no further letters of
intent will be issued and the “statement that no further
letters of intent would be issued would be coupled with
formal identification of all outstanding matters and
urgent and concentrated efforts, within the constraint
of time, to address the matter.”
One of the reasons that Turner & Townsend did not push
for a formal written contract as vehemently as it might
have done otherwise is based on a misunderstanding
that the Trust’s position was protected without a
formal contract. During the course of the works Turner
& Townsend were acting under the misapprehension
that the series of letters of intent entitled the Trust to
liquidated damages in the event of delayed completion.
It was found that the letters of intent did not in fact
have that effect and, further, that Turner & Townsend
should have obtained or instructed the Trust to obtain
the appropriate legal advice in respect of the contractual
position. What Turner & Townsend could not do “was
proceed on the basis of a particular legal understanding
and then say that it was no lawyer and could not be
expected to bring a lawyer’s understanding to bear” (see
paragraph 11 of the judgment).
Upon a finding of breach on the part of Turner &
Townsend, in particular a failure to provide appropriate
advice, the questions of causation and quantum followed
the loss of a chance principles stated in Allied Maples
Group Ltd v Simmons & Simmons [1995] EWCA Civ 17. The
correct approach was for the Trust to prove on the balance
of probabilities:
a. that, if it had received appropriate advice, it would
have acted in accordance with that advice;
b. that, if it had done so, there would have been
a real or substantial chance, as opposed to a
speculative chance, that the contractor would
have signed the contract including the liquidated
damages provision. Notably, it was not incumbent
of the Trust to prove that the contractor would have
signed the contract;
4 Informa Law
Issue Spring 2013
c. that the signed contract would materially have
improved the Trust’s position as against the contractor;
and
d. that the Trust would have availed itself of its improved
position.
(Para 134 of the judgment)
Following this, the process of quantification of damages
will require both (a) a valuation of the benefit that the
Trust would have obtained if it had a contract and (b) an
assessment of the size of the chance that the contractor
would have signed the contract.
Looking at the terms of the contract that it was found
there was a substantial chance the contractor would
have signed, it was found that the liquidated damages
provisions would have been £50,000 per week. This
figure was calculated by reference to the weekly cost
of providing alternative accommodation for the students
in hotels and guest houses. It was possible that such
alternative accommodation would have been provided,
although the Trust’s intention had been instead to house
the students in the older accommodation at the college.
The Trust had adopted its method of calculation as a
convenient, though artificial, way of taking into account
the real risk that it would suffer significant damages
under an altogether different head which was difficult to
quantify, namely the deleterious impact on recruitment
of girls as students at the College. The calculation of
liquidated damages was intended to make some realistic
allowance for both these heads of loss – alternative
accommodation costs and loss of recruitment – but was
presented solely in terms of the former head because of
the difficulty both of calculating the latter head and of
presenting it intelligibly to a contractor (see para 178 of
the judgment).
The classic test of whether liquidated damages
constitute a penalty are set out in Lord Dunedin’s
propositions in Dunlop Pneumatic Tyre Company v New
Garage and Motor Co [1914] UKHL 1. Most reformulations
of these propositions, the most recent of which is Buxton
LJ in Murray v Lesiureplay plc [2005] EWCA Civ 963 state
that there are two alternatives, and two alternatives
alone. The term is either a deterrent penalty or a genuine
pre-estimate of loss.
There is however a decision which would, at least on
one reading, appear to provide for a third way. In Azimut-
Benetti v Healey [2010] EWHC 2234, the court considered
liquidated damages provisions in the context of a contract
for the delivery of a 60 metre yacht. Blair J appeared to
be willing to go further than previous cases and look at
“commercial purpose” of a clause (para 21):
“On the other hand, (as the claimant points out) this
does not imply that if the comparison between the
amount payable on breach and the loss that might
Issue Spring 2013
be sustained on breach discloses a discrepancy, it
follows that the clause is a penalty. A particular
clause might be commercially justifiable provided
that its dominant purpose was not to deter the
other party from breach (see Cine Bes Filmcilik VE
Yapimcilik v United International Pictures [2004] 1
C.L.C. 401 at [15], Mance L.J. Murray v Leisureplay,
ibid, at [50], Arden L.J. and [106], Clarke L.J.) As
Lord Woolf said in Philips Hong Kong Ltd v.AG of
Hong Kong (1993) 61 BLR 41 at 59, the court has
to be careful not to set too stringent a standard
and bear in mind that what the parties have agreed
should normally be upheld. At least in connection
with commercial contracts, great caution should be
exercised before striking down a clause as penal
(Murray v Leisureplay, ibid, at [114] Buxton L.J.),
though the circumspection that the courts show
before striking down a clause when the parties are
of equal bargaining power does not displace the
rule that the clause must be a genuine pre-estimate
of damage (Lansat Shipping Co Ltd v Glencore Grain
BV [2009] 2 C.L.C. 465 at [33], Lord Clarke MR).”
On one view, the position might be said to be that unless
the paying party could show that a liquidated damage
clause amounted to a penalty then the court would not
interfere. The difficulty with this analysis is that:
a. it is based upon a test derived from Cine which Arden
LJ adopted in Murray v Leisureplay plc, see paragraph
42, but which Clarke LJ and Buxton LJ disagreed with,
see paragraphs 105 and 113; and
b. in any event, Blair’s J test still requires that the
liquidated damages clause must be a genuine pre-
estimate of damage.
Lord Justice Buxton’s observations at paragraph 111 of
Murray v Leisureplay plc would appear to be a correct
statement of law:
Eastern Promise? Opportunities for the English Bar in India
Thanks to very generous support from TECBAR and the
International Committee of the Bar Council, I was able
to attend a conference in Delhi between 12 and 13
October 2012 that was jointly hosted by LCIA India and
the Association of International Petroleum Negotiators.
The title of the conference was “Dispute Resolution in the
International Oil and Gas Business”.
The conference was extremely well attended, both
by Indian delegates from law firms and oil companies
and also delegates from further afield. The conference
covered a wide range of topics, including standard
form operating and production contracts, joint venture
disputes, calculation of damages in disputes over oil
Informa Law
TECBAR
“It is important to note that the two alternatives,
a deterrent penalty; or a genuine pre-estimate of
loss; are indeed alternatives, with no middle ground
between them.”
Finally, the court considered whether Turner  &
Townsend’s limitation of liability clause was
unenforceable as unreasonable, pursuant to s. 3(2) of
the Unfair Contract Terms Act 1977 (which was accepted
applied to the terms of the appointment). The clause
provided that:
“Liability for any negligent failure by [Turner &
Townsend] to carry out Our duties under these Terms
shall be limited to such liability as is covered by Our
Professional Indemnity Insurance Policy terms... and
in no event shall Our liability exceed the fees paid to
Us or £1million whichever is the less.”
Under the appointment, Turner & Townsend were obliged
to take out a policy of professional indemnity insurance
with a limit of £10 million for any one occurrence or series
of occurrences arising out of any one event.
It was found that the limitation of liability clause
was unreasonable. The central factor in this decision
was the obligation for Turner & Townsend to take out
a professional indemnity insurance up to a level of
£10 million where, the Judge found as a matter of
commercial reality, the cost of this insurance would
be passed on to the Trust but not the majority of the
benefit:
“The effect of upholding the limitation clause would
be that, although the parties had contracted for the
insurance of the risks and (implicitly) for the Trust to
pay for that insurance, far the greater part of that
insurance would be rendered illusory.”
Edmund Neuberger, Atkin Chambers
assets, international environmental law and international
investment treaty law. The quality of the sessions was
very high, and it would do a disservice to the high quality
of the speakers’ presentations to summarise them in this
short article.
Even though I learnt a lot from the content of the
conference, I gained just as much from speaking to senior
and junior Indian lawyers about their approach towards
arbitration and the English Bar. Much of what they told me
was at odds with what I was expecting.
Prior to going to Delhi, I told a senior silk about my
plans to attend the conference. Although he approved of
my efforts to attend an international conference as a baby
5
TECBAR
junior, he was sceptical about the professional benefit
I would get from attending a conference in India. To
paraphrase him (possibly unfairly), his view was that the
Indian legal market is closed to English lawyers because
the Indian legal community is protectionist and large
enough as it is. However hard I tried, instructions would
not follow from establishing contacts in India.
There is more than a ring of truth to the silk’s advice.
Bar Council of India regulations mean that India remains
closed to international law firms. English firms are forced
to set up “best buddy” arrangements with Indian law firms
if they are to get any real opportunity of Indian work. The
knock-on effect of this regulation for barristers trying to
establish an Indian practice is that a solid relationship with
a London, Dubai or Hong Kong office of an international
law firm is unlikely to result in instructions in India-related
disputes. Further, it is particularly difficult to research
Indian law firms from afar because of the Bar Council of
India’s ban on Indian law firms setting up websites.
In spite of these drawbacks, I left the conference
believing that there is greater potential for barristers to
be involved in India-related disputes than there is for
our solicitor counterparts. As we are a referral profession
that is not subject to the stringent restrictions faced by
non-Indian law firms, Indian law firms are free to instruct
English counsel for arbitrations whenever they wish.
Many are keen to do so. One partner that I met at the
conference said, with some dismay, that even though he
was keen to instruct English counsel he was more likely
to meet barristers on trips to Beijing or Hong Kong than
he was if he stayed in India. He did not see the sense of
this given the strong cultural ties that exist between India
and the UK and the shared language and legal tradition of
the two countries.
The attraction of India is not solely a shared heritage,
but also its economic growth. While Europe and North
America have flirted with recession since 2008, India’s
annual growth during that time has been as high as 8.8%.
India’s conglomerates such as Reliance and Tata are now
Akenhead J’s approach to delay analysis in Walter Lilly v Mackay
The article by Thomas Crangle regarding Walter Lilly v
Giles Patrick Mackay [2012] EWHC 1773 TCC in the Autumn
2012 edition gave a very useful commentary on that most
interesting case. Whilst the article focussed mainly on
the aspects of the Judgment relating to “global” claims, it
also highlighted some important points arising from the
case in respect of extension of time.
As a delay analyst, I am always interested in any
guidance that may be given by the courts in respect of
methodology. As noted by Thomas Crangle, Akenhead  J
observed that “the debate about the ‘prospective’ or
6 Informa Law
Issue Spring 2013
investing heavily outside India, with Tata’s high-profile
takeover of Jaguar being just one example of Indian
investment abroad. So impressive is India’s growth story
that the Prime Minister himself has led a trade visit to
India in recent months.
More international trade means more international
disputes. Given that, on average, a litigant must wait for
over half a decade for their dispute to be dealt with by
an Indian court, firms transacting in India are keen to
arbitrate. However, traditionally arbitration in India has
not had a good reputation. In the past, Indian courts have
been far more willing to interfere with arbitral proceedings
and deny enforcement of arbitral awards than most other
developed jurisdictions. Nevertheless, there is reason for
hope: the Indian Supreme Court bucked its interventionist
trend last year in its decision in BALCO v Kaiser Aluminium,
which limited the jurisdiction of Indian courts to exercise
supervisory powers over foreign-seated arbitrations. To
use the jargon of the international arbitration community,
India does not seem as “anti-arbitration” as it used to.
The Bar is in a strong position to play a role in India-
related disputes for a number of reasons. First, anecdotal
evidence at the conference suggested that English law is the
preferred choice of law for most Indian firms doing business
outside of their own borders. Secondly, the Bar can benefit
from the Indian legal community’s increased disaffection
with ad hoc arbitration and its increasing enthusiasm for
arbitral institutions such as LCIA India to administer their
arbitrations. This is because even though institutional
arbitration is relatively novel in India, it is not for the English
commercial and construction Bar. Thirdly, the commercial
and construction Bar’s familiarity with arbitration gives it a
unique advantage in international arbitration, regardless of
the identity or nationality of the parties.
My view after the conference was that it could well be
difficult for the English Bar to make strides in India, but it
would almost certainly be worth the effort.
Sanjay Patel, 4 Pump Court
‘retrospective’ approach to delay analysis was also
sterile because both delay experts accepted that, if each
approach was done correctly, they should produce the
same result”1.
For two delay experts to agree on that question is
surprising and, I suspect, much to do with the unusual
facts in the Walter Lilly case. The facts were that the
disputed period of extension of time was from early
2007, when the bulk of the works were substantially
1 Para 380.
Continued on p8
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complete, until August 2008, when practical completion
was achieved. The period appears to have been
characterised by additional instructed works, correction
of defects and works being carried out by directly
employed tradesman. According to Walter Lilly, it was
not possible to produce programmes and forecast
completion throughout that time because of outstanding
information and the activities and progress of the
directly employed labour. This absence of a programme
showing a planned sequence of known works yet to be
completed made conventional prospective methods of
delay analysis very difficult. Of the methods adopted by
the experts, Akenhead J preferred that of the claimant’s
expert which was “to identify as far as possible WLC’s
actual progress with the Works on a monthly basis and
its planned intentions for executing the remainder of
the Works”2.
Both “prospective” and “retrospective” methods of
delay analysis require the identification of the critical
sequence of activities through to completion of the works.
Where the works are proceeding in an ad hoc manner
and a critical path to completion cannot be identified, the
conventional means of implementing either method will
not be possible which is why both experts in the case had
to find an alternative.
As to more usual disputes, where a critical sequence
of activities can be identified, the two approaches
are more likely to produce different results, even if
properly applied. The reason for this is as follows. As
noted by Akenhead J quoting the Claimant’s expert, the
logical and conventional way to establish critical delay
is by reference to the “logical sequence(s) of events
which marked the longest path through the project.3”
However, the difference between a prospective analysis
and a retrospective analysis is that whilst the former
considers what is calculated to be the forward critical
path by reference to the contractor’s contemporaneous
programme, a good retrospective analysis will use the
sequence of activities through the project that was
actually the longest by reference to the as-built history.
In some cases, particularly where projects are small
or uncomplicated, there may be no difference and the
results will be the same. But in large or complex projects
the activities forming the forward critical sequence may
well change over the course of the works. This may
be as a result not just of delays but also because the
contractor may make better or worse progress than
was planned or because the planned sequence may
not be followed. In these circumstances, delays which
are thought at one stage to be critical may not in the
end affect the longest sequence of activities leading to
completion, as identified after completion. Such delays
will not have delayed that sequence and thus will not
have delayed completion.
In my view, the question of whether prospective or
retrospective methods of delay analysis are best suited
to determining the cause of project overrun will remain a
fertile ground for debate.
John Marshall, EC Harris

2 Para 377. 3 Para 98.

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