Driver Trett Digest Issue 26 - Flipbook - Page 13
DIGEST | ISSUE 26
A QUICK,
HOW-TO GUIDE
Notably, the court stated that “simply because the
delaying event itself is on the critical path does not
mean that in point of fact it impacted on any other
site activity save for those immediately following and
dependent upon the activities in question.”3
Keeping well-organised records will allow a
contractor to consider what records it has available
and can also help identify gaps in records, for
example, where a third party is the custodian for
certain documents.5
Consideration must therefore be given to the type of
analysis used to demonstrate the causal link between
delay and costs.
Therefore, appropriate documentation requirements in
subcontracts ought also to be given consideration.
Consistent with this, the Society of Construction
Law (SCL) Delay and Disruption Protocol, notes
that the objective of a claim for prolongation costs
is to financially put the contractor in the position it
would have been in if the employer risk event had not
occurred.4
Whilst there might be a tendency to bring a global
claim, these suffer typically from relying on
assumptions and the general inability to sufficiently
demonstrate causation accurately, or at all. Such
claims are rarely successful.
SUBSTANTIATION
When identifying the evidence to substantiate the claim,
the contractor should review the records from the time
period the delaying event was felt, not the period the
project was extended into. The objective of the records
is to demonstrate causation (e.g., ‘but for’ the delay
event, the costs would not have been incurred) and
to quantify the costs claimed. Many industry bodies
provide helpful guidance as to what records to keep,6
with examples including timesheets, daily reports,
photos or videos of the works and pay roll records.
CONCLUSION
The key points to remember for bringing a well
presented prolongation costs claim are these:
The contractor has the burden of proof to demonstrate
its claim. It must show that: (1) the costs have or
will actually be incurred, (2) they were incurred as a
result of a relevant delay event and (3) such costs are
recoverable under the terms of the contract. Having
appropriate evidence to discharge this burden is of
critical importance.
1. Always pay close attention to the requirements of the
contract, particularly for demonstration of entitlement
and notification;
2. Do not assume that an extension of time will
automatically lead to a claim for prolongation costs;
3. Demonstrating causation is key; and
4. Always keep detailed records to sufficiently evidence
the claim.
At the outset of a project, a contractor should give due
consideration to the type and detail of records to be
kept and should establish and maintain effective record
keeping systems. It must also consider what documents
the contract requires it to keep.
5. The Leicester Bakery (Holdings) Ltd v Ridge And
Partners LLP (Rev 1) [2020] EWHC 2430 (TCC), in particular
paragraph 15 in which the claimant alleged loss on the
basis that Ridge held certain documents it needed during
an adjudication between itself and a third party.
6. See, for example, Appendix B of the SCL Delay and
Disruption Protocol, in particular Paragraph 4 which covers
cost records; and CLC Covid-19: Contractual Disputes &
Collaboration Guidance Record Keeping Guidance. Whilst
this guidance was drafted in respect of Covid-19 claims, the
general 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 Disruption
Protocol, Principle 20
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