|
What it all comes down to
How do we decide what is a reasonable extension of
time? This basic question gives rise to all sorts of
astonishingly complex answers, at the end of which we’re left
with … common sense
“The architect cannot reject an excusable
event just because the contractor was concurrently in culpable
delay. None of that involves being fair and reasonable – it is a
rule”
This recent City Inn vs Shepherd
Construction judgment is a worthwhile read. It draws many of
the arguments together about extensions of time. But watch out –
it also talks a lot about “common sense”. And when I once
explained to my eight-year-old offspring the error of its ways,
and when the countercheck “quarrelsome” was issued in reply, I
vividly remember my answer. “Not quarrelsome – common sense!”
“Not very helpful,” replied the eight year old.
Shepherd built City Inn a hotel in Temple
Way, Bristol. A six-week extension of time was awarded by the
architect. But practical completion was five weeks after that.
So five times £30,000 liquidated damages was payable by
Shepherd.
An adjudicator was called up to review the
architect’s extension of time. He said it was too short, and
that City Inn had to repay the £150,000. City Inn came to court
for a final throw of the dice. All this is under the JCT
contract.
Begin with a short and not-so-simple rule:
the contractor is bound to complete on the promised completion
date except to the extent that delay is caused by prevention
events listed in its contract or anyway prevented by his
customer. Remove all unlesses and ifs: the contractor must
complete on time.
Also begin with a short and not-so-simple
rule for the architect. Its job is impartially to decide whether
it is fair and reasonable within the rules of the contract to
excuse the contractor its contractual completion date and by how
much. “Fair and reasonable” is another unhelpful remark. The
judge tried to help. “The general notion is that the rule is
designed to achieve fairness as between the contractor and the
employer, and the architect is given a wide discretion in order
to achieve that result.”
As to preventions, the judge appears to be
comfortable that when a listed prevention arises to excuse the
contractor, it is a good excuse even if the contractor is in
delay at the same time for its own reasons. So the architect
cannot reject an excusable event just because the contractor was
concurrently in culpable delay. None of that involves being fair
and reasonable – it is a rule.
But what does demand fair and
reasonable judgment is the “how much”. Answering that involves
weighing complex, overlapping, interacting events … sniffing,
feeling and fathoming – and lo and behold, here enter onto the
stage the programming experts.
The judge considered them to be competent.
Snag is, they each had a different system for calculating the
excused time, if any, due to Shepherd. Alan Whitaker’s approach
was to first test Shepherd’s original programme for
reasonableness and completeness, then simply seek factual
evidence to identify where and how 11 weeks were lost. His theme
was to show “events in the construction process that logic,
experience and common sense tell you will be critical to
completion of the works”.
The other expert, Nigel Lowe, produced on his
computer what in his opinion was the as-built programme – that
is, he found out what was done rather than analysing the
original planned programme. In this way he identified the
critical path. Then he looked at the delay events and concluded
that none of them fell on the critical path, so there was no
excuse for Shepherd losing those 11 weeks.
Now then. The use of an “as built” critical
path analysis involves identification of relevant activities
based on as-built records, and links of logic between those
activities. The tribunal is heavily reliant on those links being
correct. Get a few wrong and the clever analysis chart crumples.
At the trial a fair number of errors were identified and agreed.
Well, said the judge, “in my opinion that makes this as-built
analysis of very doubtful value”. Of the other expert’s system,
the judge said: “His method of proceeding appeared to be based
on sound practical experience and on common sense.” Is there
just a hint here that the judge found the computer-driven
analysis a tad bewildering?
So, what was the end result? Shepherd got
nine of its 11 weeks. There were 11 excusable events and some
more that were down to Shepherd. Common sense said so.
Readers are invited to forward recent
judgments for reporting in this column (with full
acknowledgement) to: Tony Bingham, 3 Paper Buildings, Temple,
London EC4Y 7EU. DX: 37164 Biggleswade
Top
|
