DIGEST | ISSUE 26A QUICK,HOW-TO GUIDENotably, the court stated that “simply because thedelaying event itself is on the critical path does notmean that in point of fact it impacted on any othersite activity save for those immediately following anddependent upon the activities in question.”3Keeping well-organised records will allow acontractor to consider what records it has availableand can also help identify gaps in records, forexample, where a third party is the custodian forcertain documents.5Consideration must therefore be given to the type ofanalysis used to demonstrate the causal link betweendelay and costs.Therefore, appropriate documentation requirements insubcontracts ought also to be given consideration.Consistent with this, the Society of ConstructionLaw (SCL) Delay and Disruption Protocol, notesthat the objective of a claim for prolongation costsis to financially put the contractor in the position itwould have been in if the employer risk event had notoccurred.4Whilst there might be a tendency to bring a globalclaim, these suffer typically from relying onassumptions and the general inability to sufficientlydemonstrate causation accurately, or at all. Suchclaims are rarely successful.SUBSTANTIATIONWhen identifying the evidence to substantiate the claim,the contractor should review the records from the timeperiod the delaying event was felt, not the period theproject was extended into. The objective of the recordsis to demonstrate causation (e.g., ‘but for’ the delayevent, the costs would not have been incurred) andto quantify the costs claimed. Many industry bodiesprovide helpful guidance as to what records to keep,6with examples including timesheets, daily reports,photos or videos of the works and pay roll records.CONCLUSIONThe key points to remember for bringing a wellpresented prolongation costs claim are these:The contractor has the burden of proof to demonstrateits claim. It must show that: (1) the costs have orwill actually be incurred, (2) they were incurred as aresult of a relevant delay event and (3) such costs arerecoverable under the terms of the contract. Havingappropriate evidence to discharge this burden is ofcritical importance.1. Always pay close attention to the requirements of thecontract, particularly for demonstration of entitlementand notification;2. Do not assume that an extension of time willautomatically lead to a claim for prolongation costs;3. Demonstrating causation is key; and4. Always keep detailed records to sufficiently evidencethe claim.At the outset of a project, a contractor should give dueconsideration to the type and detail of records to bekept and should establish and maintain effective recordkeeping systems. It must also consider what documentsthe contract requires it to keep.5. The Leicester Bakery (Holdings) Ltd v Ridge AndPartners LLP (Rev 1) [2020] EWHC 2430 (TCC), in particularparagraph 15 in which the claimant alleged loss on thebasis that Ridge held certain documents it needed duringan adjudication between itself and a third party.6. See, for example, Appendix B of the SCL Delay andDisruption Protocol, in particular Paragraph 4 which coverscost records; and CLC Covid-19: Contractual Disputes &Collaboration Guidance Record Keeping Guidance. Whilstthis guidance was drafted in respect of Covid-19 claims, thegeneral principles are useful for record keeping generally.3. Costain Limited v Charles Haswell & Partners Limited[2009] EWHC 3140 (TCC) at paragraph 184.4. Society of Construction Law’s Delay and DisruptionProtocol, Principle 2013
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