Expert evidence plays a crucial role in construction contract delay claims, often determining the outcome of disputes. Expert evidence often makes or breaks a party’s case, and considerable sums are spent funding reports and responses. But all too often adjudicators in delay and disruption claims are presented with expert evidence that does not assist them due to various shortcomings. These include, among other things, that there is no contractual entitlement on the ground(s) advanced, incorrect underlying assumptions are made, lack of independent analysis of underlying factual evidence, delay analysis methodology, and conclusions derived from the analysis that do not make sense in the contractual and factual context in which the dispute has arisen.
As a result, they end up simply preferring the evidence provided by other witnesses as being more relevant, credible and more likely on a balance of probabilities, to establish the delay, loss and/or expense caused by such relevant events as have been found to exist. How the adjudicator makes that decision must be based on the evidence, both factual and expert. Ultimately it must be for the adjudicator to determine as a matter of fact if the subject works were delayed, what events caused what overall or critical delay and for how long, based on an objective view of the available evidence.
Based upon feedback from experienced adjudicators, I set out some “dos and don’ts” for experts to maximise the effectiveness and credibility of your evidence and the assistance you can provide the adjudicator when determining delay and disruption claims.
The reasons expert evidence is needed in delay claims
To state the obvious, there would be little need for expert evidence in disputes arising from extension of time and time-related costs claims, or claims for liquidated damages, if adequate contemporaneous records were maintained and retained, and EOT claims were submitted and assessed in a timely manner in accordance with any contractual condition precedent as to time and/or notice rather than “parking the issue” and waiting to see how things “pan out”. As is more often the case – they don’t “pan out” and entitlement is lost, or establishing entitlement becomes significantly more difficult and costly. Also, as the Society of Construction Law Delay and Disruption Protocol notes,[1] the number of such cases could be substantially reduced by the introduction of a transparent and unified approach to the understanding of programmed works, their expression in records, and the allocation of responsibility for the consequences of delay and disruption events. Contemporaneous records including logs and diaries, emails, time-stamped digital photos, meeting minutes, variation orders, procurement records and requests for information need to be maintained.[2] However, record keeping is often poor and found to be inadequate for the purposes of formulating EOT claims months or years after the events. The contractual provisions for producing an agreed and useable baseline programme or updated programmes (that include sound logic) are also frequently not fit for purpose and/or not followed. As a result, experts are often required to reconstruct events retrospectively, a process that is frequently subjective and shaped to align with the client’s perspective In many cases, when the loss or expense claim falls to be ascertained, it is impractical to disentangle or disintegrate the part directly attributable to each head of claim. This results in the submission of total or global cost claims, with the risks and evidential difficulties inherent in advancing and proving such claims.
The dos
Establish common ground
Where possible, experts should confer to agree on factual matters, the baseline programme, and the appropriate delay analysis methodology. Although pre-claim discussions may not always be feasible under adjudication procedures, conferring after the response stage can help narrow the dispute to key issues. This also demonstrates impartiality and a genuine effort to assist the adjudicator. It will also focus the analysis on the key issues in dispute in any supplementary reply or rejoinder evidence.
Adopt the contractually appropriate delay analysis and methodology
The contract should be the first reference point when selecting a delay analysis methodology. Does it specify a prospective or retrospective analysis, or allow for a combination? Choosing an inappropriate methodology can weaken the persuasiveness of the analysis, particularly if key data (such as a baseline programme) are missing.
If representing the respondent, it is often beneficial to use the same delay analysis methodology as the claimant’s expert. If that is not possible, consider applying both methodologies—one based on the claimant’s approach and another based on your preferred method—while clearly explaining why one is more appropriate.
State assumptions clearly
All underlying assumptions should be explicitly stated in clear and unambiguous terms. This ensures transparency and helps adjudicators assess the reliability of the analysis.
Ensure the outcome makes sense
Given the potential for errors to arise, for example, in the use of programming software, experts should critically review their findings to confirm that the conclusions align with contractual requirements, the nature of the dispute, the stage at which it arose, and industry norms. Errors in programming software or logical inconsistencies can undermine the credibility of the analysis.
The don'ts
It must be your evidence!
Expert evidence must be based on independent review and analysis of the underlying data. Relying on summaries prepared by others without verification can lead to reports that lack credibility and are ultimately disregarded by adjudicators.
Explain and justify your views
Merely criticising another expert’s methodology without providing evidence of its incorrect application or an alternative approach is unhelpful. Merely using a different methodology will not prove your criticisms as valid, nor your conclusions. Any critique should be substantiated with clear explanations and a properly applied alternative methodology
Keep reports concise and readable
Experts often face time constraints when preparing reports. However, excessive repetition, poor structure, and lack of clarity make reports difficult to engage with and increase adjudication costs.
Repeating the same argument on multiple occasions does not make it any more compelling. On the contrary, it may also cause adjudicators to overlook key points. A well-structured, concise report is far more effective than one that reiterates the same arguments multiple times.
Finally, the structure of a report assists with its readability.
While qualifications and experience are important, they should be placed in an appendix rather than the main body of the report. Adjudicators need to focus on the substantive analysis, not lengthy biographical details, unless a challenge to the expert’s credentials arises.
Summary
Effective expert evidence is essential in construction delay claims but must be presented in a clear, well-supported, and objective manner. Experts should focus on:
- establishing contract entitlement;
- establishing common ground where possible;
- using contractually appropriate delay analyses and methodologies;
- clearly stating underlying assumptions and ensuring conclusions make sense;
- conducting independent analysis and avoiding reliance on unverified summaries of facts and data; and
- keeping reports concise and well-structured.
By following these best practices, experts can enhance the credibility of their reports and provide adjudicators with the necessary assistance to make sound and informed decisions.
References
[1] Available on https://www.scl.org.uk/resources/delay-disruption-protocol.
[2] See Appendix B to the SCL Delay and Disruption Protocol for a comprehensive list of records that should be prepared and kept, and the principal reasons underpinning their relevance and utility.
