Who are you contracting with?

Contracting Parties – Who are you contracting with? – Are you sure? (Read on…)

The Scenario:

The parties are engaged and the project is going well until unexpected ground conditions pose a risk to the design.

Consequently; an independent third-party designer is engaged and contracted to provide a solution.

Sounds straightforward right?

Wrong…

Introducing the recent case:

Williams Tarr Construction Limited v Anthony Roylance Limited and Anthony Roylance [2018] EWHC 23

The Project: A Housing Development in Cheshire
The Main Contractor: Williams Tarr Construction Limited (WTC)
The Designer: Anthony Roylance Limited OR Anthony Roylance (And here lies the problem)

So who were the contracting parties?

WTC believed they had engaged Mr. Roylance in his capacity as an individual.

Mr. Roylance maintained WTC had contracted with his limited company Anthony Roylance Ltd.

And the Scope?

WTC set out Mr. Roylance had been contracted to design a solution to overcome the problems with the wall so that the wall would ultimately be fit for purpose.

Mr. Roylance stated the engagement had been limited to the scope of a design for the drain for the wall and maintained he had not designed the wall nor did the company carry the obligation to ensure the wall was fit for the purpose intended.

Conclusion

The courts considered the relevant correspondence between the parties in a bid to establish the parties to the contract, the basis of engagement and the scope of the parties.

The documents were found to be unclear which introduced further complexities with WTC producing alleged “design documents” which had been produced by Mr. Roylance with Mr. Roylance stating these were “as-built” drawings for record purposes.

WTC went on to state in the most part, the documents were that of Mr. Roylance acting in his capacity as individual as he did not use company headed paper which documented his limited company.

Mr. Roylance presented that the payments were processed through the limited company and the contractual draft collateral warranty produced by WTC made clear reference to the registration number of Anthony Roylance Ltd.

The key lesson from this case is to ensure the contracting parties and the scope of works is clearly defined within the contract to avoid confusion should a dispute arise.

Let’s talk DELAYS…

We have all been there, the date was set; ‘easy to achieve’ the team thought and there it is, slipping away from you by the second.

How did that happen you ask?

Accurate delay analysis can prove vital to a construction project; as it allows the parties to mitigate and/or manage the potential impact (and cost) of project delays.

So how do you analyse delays?

There are various methods that can be applied including Time Impact Analysis (TIA), As Planned V’s As Built Analysis and Collapsed As Built Analysis (CAB) to name but a few.

These names only begin to play a part in delay analysis when used by the experts; and, if the analysis descends into this level of detail; the impact is likely to be significant.

So what do WE need to know?

Critical Path Management (CPM) will benefit most construction projects and I for one am a big believer in the adage ‘failing to plan is planning to fail’.

So what is Critical Path Management (CPM)?

CPM is a method of analysis in which the various stages of the project life cycle are described in detail in order to establish a base line programme.

CPM is the most widely used method of programming within the construction industry.
Identifying Delays

The identification of delay entitlement is far from straight forward and the reliance on detailed records is always substantial (lesson one: keep detailed contemporaneous records).

For an extension of time claim to be successful, it should establish causation and liability. In addition it should demonstrate time related disruption costs and damages. The purpose of delay analysis is to satisfy the causation requirement, in turn allowing the resulting damages to be assessed.

Delays may be:
• Excusable
• None excusable
• Compensable
• None Compensable

In order to carry out successful delay analysis both the As Planned and As Built programmes will need to be prepared and compared (lesson two: keep a clean As Planned programme and keep the As built programme up to date).

Events

Delay events can be identified as an ‘effect based’ approach or a cause based’ approach depending on the method of analysis adopted.

The Delay Claim Life Cycle

A delay claim has a defined process which is often referred to as the ‘delay claim life cycle’. The key stages of this life cycle are as follows:

Delay Claim Life Cycle

So, as demonstrated delay analysis is far from straight forward. The key things to remember are:
• Keep detailed contemporaneous records throughout the works.
• Keep a clean As Planned programme and keep the As built Programme up to date.

If you require further information or support with detailed delay analysis, contact one of our specialists at info@kjtaylorconsulting.com or visit www.kjtaylorconsulting.com.

1 Keane & Caletka. 2016. Delay Analysis in Construction Contract. West Sussex. Wiley Blackwell.

Taylor Consulting – Who are they?

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KJ Taylor Consulting is led by Kelly Taylor, a qualified Quantity Surveyor, Commercial Consultant and training Adjudicator.

Having held appointments within the construction industry as Managing Director, Financial Director and Commercial Manager for the last 17 years, Kelly carries a vast experience with projects of varying sizes in most sectors including Petrol Chemical, Nuclear, Rail, Airports and Utilities.

Having worked for a large scale Plc. and utilities company between 2011 and 2015 and having held the responsibility of resolving their largest construction disputes, Kelly held an employed 100% track record or resolving disputes (many of which were six figure accounts) amicably whilst maintaining the client contractor relationship.

KJ Taylor Consulting Ltd. was incorporated in 2016 with a key focus of providing commercial support to construction companies across the UK, specifically specialist contractors.

I recently worked with KJ Taylor Consulting Ltd to review and negotiate a problematic Framework contract and provide representation at Client meetings
Kelly has a detailed and thorough understanding of NEC frameworks and is an outstanding communicator who remains impartial, focused and objective, particularly under pressure and in stressful situations. Her Contract expertise, knowledge and professionalism delivered outstanding results.

Quite simply Kelly is the difference between success and failure. I have no hesitation in recommending Kelly who goes that extra mile to get results
Kelly is an accomplished lecturer and provided ‘in house’ training on the NEC contract. I was impressed with the level of enthusiasm, knowledge and useful techniques provided during the day

From her extensive commercial experience and P&L responsibility, Kelly is not only able to make the NEC 3 Engineering and construction contract relevant and pragmatic; she makes it fun, interesting and memorable.
Sean Kelly
Director Of Customer Service

Kelly is an exceptionally astute, passionate and commercially adept individual who has a phenomenal knowledge about the construction sector. Her understanding of NEC frameworks coupled with her commercial and financial skills serves to benefit those who have the sincere pleasure to work with, opposite and alongside her. She has a clear, methodical and inclusive approach to working which makes working with Kelly fun, educational and successful.

Gareth Brewerton
Group General Counsel, South Staffordshire Plc.