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What makes you think they really understand the matter?

Adjudication proceedings for delay experts, are high risk. Many adjudicators have a commercial or quantity surveying background, rather than a project management or planning background, which can often lead to variable outcomes in the decisions reached by the adjudicator regarding the causes of delay. This means that a delay expert must write and structure their report in a way that addresses the needs of the adjudicator. 

Author: Andrew Agathangelou, Delay Expert

Too often, expert delay reports are written for the benefit of the party employing the delay expert, rather than for the benefit of the adjudicator. This means that too much technical detail is provided, using language that an experienced planner or site manager will understand, but an adjudicator may or may not be familiar with.

Writing an expert delay report, using language that an adjudicator can understand and follow, increases the probability that the adjudicator will find favour with the evidence presented.

This is more difficult than it suggests, because some of the causes of delay are complex, as is the explanation as why a particular delay event delayed overall completion when there might be many competing delay events.

The primary requirement of an expert delay report is to assist the adjudicator or tribunal to understand the matter in hand, hence the requirement to find the balance between the use of technical language (to explain a particular issue), and the use of more straight forward language and explanation that is understandable for an adjudicator, without being dumbed down or sounding patronising.

An example of where more straightforward language might have helped an adjudicator to decide on a matter that was difficult to explain, and decide which party held the risk, occurred on a refurbishment project in which the existing roof needed to be demolished to make way for an additional storey. The contractor designed and constructed a temporary scaffold roof over the existing roof to allow its demolition, but crucially, part of the temporary scaffold roof was propped back to the existing roof. This meant that the existing roof could not be fully demolished until an entirely new second temporary scaffold roof was designed and constructed by the contractor over and above the first temporary scaffold roof, which was then removed and allowed the remaining existing roof to be demolished.

Essentially, the contractor’s design of the first temporary scaffold roof was incorrect and should never have been propped against the existing roof to be demolished.

The resultant delay was a risk for which the contractor held the risk.

However, the adjudicator appeared to confuse the responsibility for the design of the second temporary scaffold roof, because this roof was founded in part, back to the existing structure which meant that the Employer’s structural engineer agreed to provide comments to the contractor’s second temporary scaffold roof design.

The adjudicator decided that the second design did not form part of the contractor’s temporary works, and held the Employer liable for the delay to the roof demolition because of the length of time it took to produce a temporary scaffold roof design that would allow the existing roof to be demolished.

Much technical language was used in the Employer’s witness statements and in the evidence provided by the Employer’s structural engineer, which meant that the essential message of the contractor’s incorrect first design was lost amongst all the technical detail. This resulted in the adjudicator essentially missing the key piece of evidence in which the contractor was liable for the design of both temporary scaffold roofs, and ultimately made the wrong decision.

Originally written as part of the Driver Trett Digest, issue 24. To view the publication, please visit: www.driver-group.com/digest-compendium