4 Top Tips on How to Defend a Delay Claim : Defence 2 – The claim doesn’t do what it says on the tin!
You don’t need us to tell you that a construction delay claim is an almost inevitable part of every construction project.
In our experience, even the best run projects suffer delays, and this almost always results in one party chasing after money within a delay claim.
Preparing and defending a construction claim is an immensely complex undertaking, and much has been written about the delay and quantum analysis and the preparation of construction claims generally.
We’ve put together a list of what we think are the top defences to a claim you might receive. We’ll focus on the ones that we consider to be the big hitters or put simply the ones where we have had the most success!
Defence 2 – The claim doesn’t do what it says on the tin!
In this blog, we’re going to look at the defence that they have not demonstrated the delay events they claim caused the delay, did actually delay the project.
It’s important to remind ourselves that the delay analysis must prove cause and effect; put simply it must prove that the events complained of (which were the subject of the Notices) caused the delay suffered to the project.
There are numerous established delay analysis methodologies, but one thing they all have in common is that they are retrospectively attempting to model the impact that the event had on the Contractor’s ability to complete the work on time.
This should be in the form of a schedule analysis supported by a claim narrative. Simple right?! Here are a few things to look out for:
1. Is it a Global claim? The claim should detail the delay suffered per event, not a single effect of numerous events.
2. Does the claim include a schedule analysis? In very limited circumstances would a narrative-based claim only suffice.
3. Has the Contractor adopted the most relevant delay analysis methodology? The choice of methodology should be governed by the nature of the events and the evidence available.
4. Is the delay analysis theoretical in its application? Overly theoretical analyses rarely reflect what happened on site and prove your liability.
5. Has the Contractor applied the delay analysis methodology correctly?
6. Has the Contractor used the correct baseline?
7. Has the baseline been modified so much that it no longer reflects the planned intent?
There’s more to look at when deciding if the claims demonstrate that the delay events are responsible for the delay.
We’ll cover that in the next blog, so look out for that.