#EmbraceEquity – HKA colleagues celebrate International Women’s Day 2023
8th March 2023
International Women’s Day (IWD) is celebrated globally on 8th March every year to celebrate the social, economic, cultural and political achievements of women. The day also marks a call to action for accelerating gender parity.
For IWD 2023, the global campaign theme is #EmbraceEquity.
We can all challenge gender stereotypes, call out discrimination, draw attention to bias, and seek out inclusion. Collective activism is what drives change. From grassroots action to wide-scale momentum, we can all embrace equity.
And to truly embrace equity, means to deeply believe, value, and seek out difference as a necessary and positive element of life. To embrace equity means to understand the journey required to achieve women’s equality.
HKA colleagues from around the globe demonstrating
their support for
#IWD2023 #EmbraceEquity
The United Nations’ theme for International Women’s Day 2023 is DigitALL: Innovation and technology for gender equality.
Marking #IWD in this way shines a light on the impact of the digital gender gap on widening economic and social inequalities, as well as how women’s lack of inclusion is hindering potential further creativity and innovation.
Celebrating International Women’s Day 2023 #EmbraceEquity
8th March 2023
Today marks International Women’s Day 2023, where we celebrate the social, economic, cultural, and political achievements of women and girls around the world.
At HKA, we’re actively playing a part to achieve gender parity in our business, and we’re getting behind the global effort to #EmbraceEquity.
” On International Women’s Day, HKA celebrates the incredible achievements of women and girls throughout history, and recognise that there is still much work to be done to achieve true gender equality in every aspect of society.”
Chris Bernard, Partner and Global People Recruitment and Equality, Diversity & Inclusion
To celebrate #IWD2023, HKA’s global leadership team and colleagues came together to discuss some important issues surrounding gender representation and the United Nations’ ambition to achieve gender parity.
The United Nations set a goal back in 2015 to achieve gender parity for women in areas of economic, educational and financial advancements by 2030. In the most recent assessment, the view is that there has been a number of global shocks, including the pandemic, which have resulted in the slowing of progress in gender parity, and the UN’s revised target date is now 2108.
Listen to our colleagues’ thoughts below:
Listen to the discussion in full here:
HKA International Women’s Day Panel Discussion (In order of teams recording)
As Concurrent Expert Evidence (CEE), otherwise known as “hot tubbing”, becomes more popular as a modern approach to dispute resolution, it’s important to know what it means and why it’s used.
With this in mind, HKA’s Peter Caillard shares some reflections from a practising expert’s viewpoint, and asks: Is hot-tubbing the expert’s friend?
What is Hot-tubbing (Concurrent Evidence)?
Concurrent Expert Evidence (CEE), sometimes referred to as witness conferencing, but colloquially known as “hot-tubbing”, is the practice whereby two or more experts at a hearing give their evidence concurrently. This enables simultaneous questioning and discussion on the key issues.
Traditionally, expert evidence involves each party’s experts providing examination-in-chief followed by cross-examination. Hot-tubbing is a more cooperative method.
Before the trial, experts issue written reports and engage in pre-trial meetings to identify areas of agreement and disagreement. At the trial, these experts are sworn in together, and a judge chairs a discussion between them, shaped by an agenda derived from a joint statement or court-approved issues of contention.
The main objective of hot-tubbing is to create an environment where experts engage in real-time discussions, allowing the court to focus on core issues. By having experts present their evidence concurrently, this process reduces the conventional adversarial combat between cross-examining counsel and experts.
In essence, hot-tubbing aims to put the experts on an equal footing, promoting discussions that reveal the strengths and weaknesses of their respective positions.
Context of Hot-tubbing (Concurrent Evidence)
In traditional dispute resolution, there is often a battle between opposing legal teams (who seek the best outcome for their respective clients) and the decision maker (whose objective is to arrive at a good decision). Decision makers – be they judges, sole arbitrators or arbitral panels – will wish to compress the experts into narrowing the issues.
Hot-tubbing contributes towards this process and should be seen as part of a continuum which includes preparing reports, meetings of experts, presentations, cross-examination, and hot-tubbing.
However, legal teams often fear a loss of control in a decision-maker led hot-tubbing session, and for this reason its use remains controversial. All of this can be seen in the context of a struggle for control of the agenda between legal teams. The experts and their opinions are at the centre of this struggle.
Background of Hot-tubbing (Concurrent Evidence)
Hot-tubbing had its origins in Australia in the 1970s. Its intention was to facilitate a discussion chaired by the decision-maker which encouraged cooperation between the experts towards agreement on key issues. Since then, its use has spread worldwide. In the UK, the Civil Procedural Rules Part 35 provide guidance for conducting the procedure.
The process can take varying forms in different jurisdictions. It can be used as an alternative to conventional cross-examination, or in addition to it. Questions may be put by each party’s counsel, the decision-maker, or more commonly, both. The process extends naturally from the preparation of a joint statement, whereby opposing experts have already discussed issues and recorded acknowledged areas of agreement and disagreement. Indeed, the joint statement is typically employed as the agenda for this part of the proceedings.
Hot-tubbing is usually led by the decision-maker, and this helps reinforce that the experts’ paramount duty is to the decision-maker, not their client.
Advantages of Hot-tubbing
There are a number of advantages to hot-tubbing that explain its increasing popularity.
The conventional cross-examination process can sometimes lead to frustration for experts facing aggressive questioning from counsel. This approach, aimed at discrediting the expert or diverting attention, poses challenges.
However, Concurrent Expert Evidence (CEE) offers an alternative. In the hot tub, questions are not solely posed by opposing counsel; the decision-maker takes an active role, focusing on understanding the expert’s position rather than attempting to catch them out. This dynamic creates a more sustainable and open environment for experts to present their opinions.
Some of the main advantages of hot-tubbing include:
Reduced Aggressiveness: Hot-tubbing minimises the aggressive nature often associated with conventional cross-examination, providing experts with a more constructive platform to present their views.
Decision-Maker’s Role: Questions in the hot tub are often posed by the decision-maker, concentrating on understanding the expert’s position and reasoning rather than attempting to discredit them.
Opportunity for Explanation: The hot-tubbing process offers experts greater opportunities to explain their opinions in-depth, compared to the narrow scope of traditional cross-examination.
Encouraging Common Ground: Hot-tubbing fosters an environment that encourages experts to find common ground, promoting collaboration over adversarial positions.
Building Credibility: Sitting in the hot tub alongside industry peers, experts are compelled to respond reasonably, enhancing their credibility through reasoned argumentation.
Risk Mitigation: The hot-tub setting reduces the risk of experts leaning towards critical opinions influenced by remote report writing or external criticisms.
Disadvantages of Hot-tubbing
While offering advantages such as reduced adversarial tones and enhanced cooperation, hot-tubbing also presents distinct challenges. These include:
Potential Dominance: Hot tubbing may encourage the dominance of one expert in the discussion, driven by their personality, experience, or eloquence. This dynamic could impact the equal contribution of all experts.
Limited Counsel Involvement: Counsel faces constraints in seeking their expert’s assistance while the other expert is speaking, as both experts are seated together. This may hinder the traditional back-and-forth collaboration between counsel and expert.
Shift in Preparation Focus: Time traditionally spent by counsel on preparing and probing experts for testimony must be redirected to hot-tubbing. This shift in preparation may introduce unfamiliar challenges for experts.
Risk of Over-Simplification: In the interest of time and comprehension, experts may face the risk of oversimplifying their explanations. Time constraints could contribute to discussions remaining at a superficial level.
Uncertain Time and Cost Savings: Contrary to expectations, hot-tubbing may not always result in time and cost savings compared to traditional cross-examination. Determining the scenarios where concurrent evidence is more appropriate poses a challenge.
The Expert’s Friend?
Hot-tubbing favours the expert who is well prepared, knows their subject, and who avoids the temptation to offer advocacy for their client’s case. Arguably it also favours the expert who is articulate and whose presentational skills are well-honed, although these qualities will not save the practitioner whose evidence is found wanting.
Furthermore, in cross-examination, counsel, however skilled and eloquent, suffers from one fundamental disadvantage. They are unlikely to possess the same level of subject matter understanding as the expert, and when questioning, may not always be able to react instantly to an answer which they do not fully comprehend. There is no-one to whisper in their ear with that killer follow-up question. In the hot-tub however, where other experts are on hand to provide instantaneous responses, there is less chance that flawed evidence will pass unchallenged or undetected. The hired gun is more easily exposed, as ill thought-through arguments will fall apart.
For many experts, the hot-tub experience is less daunting than cross-examination. The intensity of the spotlight is now shared. Critical thinking time is available while the other expert is speaking.
Most experts welcome the more relaxed and less formal atmosphere of the hot-tub, and the opportunity it presents to explain opinions rather than simply providing responses to opposing counsel’s carefully crafted questions. In the hot-tub there is nowhere to hide, but the expert who is focussed on assisting the decision-maker to reach the right decision does not need a hiding place.
The Decision-Maker’s Friend?
Hot-tubbing remains popular, and its use in dispute resolution is growing. It enables and encourages instantaneous discussion. Whereas in the hot-tub, an opinion proffered by one expert is quickly and easily referred to the other expert for a response, under cross-examination opposing experts may take the stand several days apart.
More importantly, joint discussion encourages experts to identify not only points of disparity but matters of agreement. This is of fundamental assistance to a hearing which is attempting to narrow down the issues.
There is little that pleases a decision-maker more than experts who have genuinely tried to find common ground! Although an independent approach cannot be forced upon experts, the format of the hot-tub facilitates and indeed encourages discussion and dialogue; the expert who acts as the hired gun is far more likely to be exposed than under conventional cross-examination.
Hot-Tubbing (Concurrent Evidence): The Verdict
A good expert has nothing to fear from hot-tubbing – indeed, they should relish the opportunity. An expert who has performed to their brief with diligence and remained cognisant of their primary duty to the decision-maker, will find that the hot-tub is their friend – indeed their credibility will shine through!
Unmatched Expert Support With HKA
HKA is a global leader in expert services, serving clients worldwide in resolving disputes and complex technical issues. We are renowned for unparalleled expertise across various disciplines, from quantum analysis to commercial damages and forensic accounting.
Our multidisciplinary approach extends to our expert witness and advisory services. We are the go-to solution for aid with arbitration, adjudication, mediation, and litigation.
About the Author
Peter Caillard, a Chartered Civil Engineer with nearly four decades of experience in the construction industry, stands as a distinguished expert in the field. Holding a BSc (Hons) in Civil Engineering, he boasts professional memberships as a CEng, Eur Ing, FICE, and FCIHT. Peter’s extensive background includes the design and construction of highways, transportation, and infrastructure projects.
Throughout his illustrious career, Peter has managed projects across the globe, including in the UK, Europe, the Middle East, Africa, and North America. His expertise spans various aspects of design and construction, such as highway geometry, road pavement construction, drainage, earthworks, structures, public utilities, and materials testing. Beyond his design and managerial roles, Peter is well-versed in transport planning for both public infrastructure projects and private developments.
Christian Jeffery joins HKA as Principal in the Forensic Accounting and Commercial Damages practice
5th January 2023
HKA, a leading global consultancy in risk mitigation, dispute resolution, expert witness and litigation support services, announced today that Christian Jeffery, a valuation and commercial damages expert, has joined the firm as Principal, based out of the London office.
Christian is a consultant who provides expertise in disputes and arbitration, which includes project and commodity valuation, and advice regarding commercial structures and terms. He has extensive experience leading teams in gathering and analysing relevant data, and presenting analytic, commercial, and factual evidence for arbitration proceedings.
Colin Johnson, Partner and Head of Forensic Accounting and Commercial Damages, EMEA said:
“I am delighted to see Christian join us, bringing his strengths as expert witness in energy and natural resources in particular, as well as in construction, transportation and other areas”
With over 14 years of experience, Christian has been appointed as an expert witness in ICSID and commercial arbitrations and he has also assisted in the annulment proceedings relating to a major ICSID award.
Having worked on projects throughout Europe, the Middle East, Africa and Asia, Christian specialises in the international energy and commodity industries but also has experience in the construction, transportation, and banking sectors, as well as in securities litigation.
Before joining HKA, Christian was a consultant at a number of international consultancies where he provided support to clients in dispute matters, as well as broader commercial and economic consultancy in natural gas and LNG markets.
“I am excited to join HKA to continue to develop my career as a testifying expert. The opportunity to work with the large group of experts and industry specialists at HKA means that we will be able to offer our clients the broad range of knowledge and skills required in complex disputes.”
HKA is a leading global consultancy in risk mitigation and dispute resolution, using our multi-disciplinary expertise to provide a comprehensive set of specialist services:
Expert, Claims and Advisory services for the capital projects and infrastructure sector
Forensic Accounting and Commercial Damages services for all types of contracts, including commercial and investment treaty disputes
Consulting services to support companies working on US Federal Government contracts.
Headquartered in the UK, HKA brings a proud record of excellent service and high achievement to bear on today’s challenges. As trusted independent consultants, experts and advisers, we help clients manage disputes, risk and uncertainty on complex contracts and challenging projects.
We work with government agencies, local authorities, contractors, legal firms, and other professional service providers, as well as owners and operators, financial institutions and insurers. Clients have access to leaders and problem-solvers who decode complexity through collaborative working and innovative thinking, making the best possible outcomes a reality for our clients, every time.
As well as more than 500 expert witnesses, HKA now has in excess of 500 advisors and consultants – across 40+ offices in 18 countries – with the skills and experience that are essential to get to the heart of even the most complex issues. Our people have vast first-hand experience spanning all major industries and the world’s most complex megaprojects, as well as an international track record of achieving successful outcomes.
HKA’s global portfolio includes some of the world’s largest and most prestigious commissions across a wide range of industries including buildings, industrial and manufacturing, power and utilities, resources, transportation infrastructure, technology, financial services, government contracts and non-profit.
Media contact
Name
Suzanne Rayson
Title
Regional Marketing Manager
Number
+44 1928 756 500
Email
SuzanneRayson@hka.com
For more information about HKA, visit hka.com and connect with us on LinkedIn, Twitter (@HKAGlobal) and Facebook.
HKA strengthens its Forensic Technical Services practice with the acquisition of GMR Aviation Consulting
4th January 2023
HKA, a leading global consultancy in risk mitigation, dispute resolution, expert witness and litigation support services, is delighted to announce it has acquired GMR Aviation Consulting (GMRA), a specialist firm providing expert consulting and training services to both the civil and military aviation sectors globally.
Based primarily in the UK, GMRA’s core clients include some of the world’s largest global aeronautical companies, as well as medium- and small-sized businesses and entrepreneurial boutiques.
Amanda Clack, Regional CEO, EMEA at HKA said:
“Adding the combination of the HKA brand capabilities in Forensic Technical Services, with GMRA’s in-depth expertise in aviation consulting, is an exciting start to 2023. At HKA we always want to continue to provide leading consultancy advice in risk mitigation for our clients across the globe, and this team provides a welcome addition to our specialist capabilities in this area.”
The acquisition of this specialist business brings a new area of capabilities and expertise to HKA’s Forensic Technical Services (FTS) practice, allowing the firm to extend its service offering to existing and new clients specific to the aviation legal sector. HKA’s new aviation technical expert capabilities will also complement its existing commercial damages practice, which provides services to the aviation disputes market.
The acquisition welcomes a team of well-respected and talented experts with a strong pedigree in the world of aviation, along with a wider multi-disciplined team of over 40 aviation professionals who join HKA as Independent Consulting Experts.
Lloyd Watson joins HKA as Technical Director, Aviation and Space Technical Division Lead.
Lloyd is a former Royal Navy helicopter pilot and aviation operations leader with over 35 years of experience in both military and commercial aviation. Lloyd has been the safety director for a global petroleum organisation, has instructed at flight academies and has worked in airline flight planning, air displays and a wide variety of military operations. He is an expert in operational risk assessment and safety.
“We are incredibly proud to be joining HKA, the leading global consultancy in risk mitigation and dispute resolution. We have worked hard to provide an exceptional service to our clients and the HKA brand now enhances our capabilities and provides the opportunity to expand our customer base from regional to truly global”.
Lloyd Watson, CEO, GMR Aviation Consulting
Simon Dean McCarroll joins HKA as Technical Director.
Simon is an airport operations leader with over 25 years of experience both as an airport client and as a consultant. He is an expert in aviation facilities planning, terminal design and airfield simulation, to financial astuteness and operational control. Simon has undertaken more than 20 technical due diligence projects, advising major investors on the purchase of aviation assets.
Gerry Brannigan, Partner and Head of Forensic Technical Services said:
“The mission at HKA is to help our clients access the world’s very best experts, those with a proven track record in bringing credible and demonstrable depth that makes a difference.
Aviation-related disputes are on the rise, and with the acquisition of GMR Aviation, HKA now has an unrivalled portfolio of some of the very best global aviation experts which will bring real value to our clients.
This strategic acquisition reaffirms our commitment to expanding our business by targeting leaders in our markets alongside sustained organic growth. We are delighted to further enhance the value HKA offers to clients with the talented team at GMR Aviation”
HKA’s Forensic Technical Services practice comprises a network of over 500 subject-matter forensic technical expert witnesses in over 180 specialist areas in multiple industry sectors including construction buildings and infrastructure, energy resources and industrial, IT, cyber and technology, ESG and climate change, digital and information forensics, and aviation and space.
ABOUT HKA
HKA is a leading global consultancy in risk mitigation and dispute resolution, using our multi-disciplinary expertise to provide a comprehensive set of specialist services:
Expert, Claims and Advisory services for the capital projects and infrastructure sector
Forensic Accounting and Commercial Damages services for all types of contracts, including commercial and investment treaty disputes
Consulting services to support companies working on US Federal Government contracts.
Headquartered in the UK, HKA brings a proud record of excellent service and high achievement to bear on today’s challenges. As trusted independent consultants, experts and advisers, we help clients manage disputes, risk and uncertainty on complex contracts and challenging projects.
We work with government agencies, local authorities, contractors, legal firms, and other professional service providers, as well as owners and operators, financial institutions and insurers. Clients have access to leaders and problem-solvers who decode complexity through collaborative working and innovative thinking, making the best possible outcomes a reality for our clients, every time.
As well as more than 500 expert witnesses, HKA now has in excess of 500 advisors and consultants – across 40+ offices in 18 countries – with the skills and experience that are essential to get to the heart of even the most complex issues. Our people have vast first-hand experience spanning all major industries and the world’s most complex megaprojects, as well as an international track record of achieving successful outcomes.
HKA’s global portfolio includes some of the world’s largest and most prestigious commissions across a wide range of industries including buildings, industrial and manufacturing, power and utilities, resources, transportation infrastructure, technology, financial services, government contracts and non-profit.
For more information about HKA, visit hka.com and connect with us on LinkedIn, Twitter (@HKAGlobal) and Facebook.
HKA’s French business is delighted to have been awarded Qualiopi certification, the French quality certification brand for training and skills development services. Qualiopi certification became compulsory for vocational training and skills development services in France from January 1st, 2022.
Endorsed by the French government, Qualiopi certification attests to the quality of training delivered by HKA Global France and provides the opportunity to propose training modules to clients and their employees in the field of contract and commercial management training through a range of French public-funded procurement mechanisms.
To guarantee high quality training over time, a surveillance audit will be carried out 14 to 22 months later, followed by a renewal audit 3 years after the first audit.
Congratulations to Anne-Marie Giot, Business Support Lead in France who led the certification process and successfully demonstrated compliance in producing dedicated procedures and templates during the Bureau Veritas audits.
Whilst they might not seem immediately related, the Alex Jones defamation case on the Sandy Hook school shooting raises interesting issues regarding the disclosure of BIM files.
An essential principle of the client/lawyer relationship is the privileged status of information shared between them. This information might be contained in traditional media, such as hard copies of letters or more sophisticated digital drawing files. Two recent and strikingly different cases highlight the potential for the inadvertent disclosure of privileged information and the importance of correctly understanding what might be contained in a hard or digital file.
In the recent case of Pickett v Balkind,[1][2022] EWHC 2226 (TCC the claimant’s lawyer disclosed an unredacted letter to the defendant in support of a request for an adjournment. This letter was disclosed in relation to two paragraphs to support the reasons for the adjournment. However, the letter indicated that the claimant’s legal advisor had been involved in drafting the experts’ joint statement. Such involvement was a breach of the TCC Guide.
In addition, the claimant’s expert report included an opinion that relied upon a previously undisclosed report prepared by a third party. Having relied upon the contents of this third-party report, the defendants sought the disclosure of the report. The claimants attempted to reassert privilege in respect of both the letter and the earlier report. This was refused by HHJ Paul Matthews, who determined that the claimant’s actions had disclosed both the third-party report and the full content of the letter.
The case is strikingly similar to the precedent set by Great Atlantic Insurance Co v Home Insurance Co.[2][1981] 1 WLR 529 In this case Counsel relied upon two paragraphs of a document which also included discussions about the plaintiff’s legal strategy.
In both these cases, the accidental disclosure is related to written material which could have been identified before issuing. Whilst the content of a letter or report might be quite transparent, the information contained within a digital file may not be obvious.
In the Alex Jones case, the disclosure of privileged information occurred when his attorney released a file containing a full copy of Alex Jones’s phone data. It is unclear how this file came to be released. It could, for instance, have been as simple as someone failing to understand what the file was and what it contained.
Whilst the content of a file titled “Alex_Jones_Phone_Backup” might be quite apparent, a file titled “AJ00032”, stored in a location with potentially thousands of other documents might be less so. The lack of transparency in naming is even more significant for the construction industry, where defined naming conventions such as BS EN ISO 19650[3]BS EN ISO 19650-1:2018 Organization and digitization of information about buildings and civil engineering works, including building information modelling (BIM). Information management using building … Continue reading result in file names being alphanumerical strings that have some meaning to construction professionals but less to those outside the industry.
Whether it was disclosed in error or intentionally but without an understanding of what it contained, the issue in the Alex Jones case was the nature of the content disclosed in the single file. Not only would the file contain text messages, emails, and pictures, but it would also provide all the corresponding metadata for that information. Metadata is defined as[4]As defined by the Ministry of Justice Practise Direction 31B (7 “Data about Data” and “It may include (for example) the date and time of creation or modification of a word-processing file, or the author and the date and time of sending an email.”.
The nature of the file and volume of data contained in Mr Jones’ phone backup might reasonably be compared to a Building Information Modelling (“BIM”) file. Both are single files that cannot be opened and viewed without specialist software, and both contain multiple sets of information with all the associated metadata.
A designer’s BIM file can potentially contain almost all of its data for a project and, if standard practice is followed, far more information than was ever shared with other parties during the life of a project. The metadata within a BIM file also represents far more than “the date and time of creation or modification of a word-processing file”.
As such, it is standard practice that when a designer shares BIM information, the master[5]Master in this context refers to the designers’ working files from which 2D and 3D information are extracted. In the normal course of business, this master information is unlikely to be shared with … Continue reading BIM file is stripped back, and only a discrete subset of the information is provided within the shared[6]This issued file containing a validated subset of information is the defined contractual BIM deliverable for a designer working within a collaborative BIM environment. BIM file. Limiting the information in this fashion allows the shared data to be verified, and, in turn, the associated risk of issuing the information is understood.
Should a dispute arise the information in a master BIM file could be beneficial to an opposing team because it can contain design options, calculations, user access records, and clash detection analysis, which relate to a designer’s in-house design process rather than its contract deliverables. Designers and their legal teams therefore need to be aware of the information that might be contained within a master BIM file and take steps to identify what might already have been shared and ensure that the content of what is to be disclosed is fully understood.
Unlike phone data, where it would be self-evident that a file would include copies of text messages, it would not be self-evident to a legal team what information might be contained in a master BIM file. In a large project, the volume of information and the number of different ways BIM files can store data is such that even an experienced user might not know what the full content of a master BIM file includes. The consultant and legal team need to recognise the potential risks when releasing a master BIM file if it is released in a dispute.
The issue related to BIM files is no different from any other disclosed file. It is one of knowing exactly what information is being issued. However, when compelled to release a master BIM file, can a party effectively redact the file to limit the information, or will the courts enforce the release of all the embedded data?
BS EN ISO 19650-1:2018 Organization and digitization of information about buildings and civil engineering works, including building information modelling (BIM). Information management using building information modelling – Concepts and principles
Master in this context refers to the designers’ working files from which 2D and 3D information are extracted. In the normal course of business, this master information is unlikely to be shared with third parties.
This issued file containing a validated subset of information is the defined contractual BIM deliverable for a designer working within a collaborative BIM environment.
The onset of Covid feels like a ‘flash in the pan’ but its effect on construction projects is still hotly debated as contractors seek compensation for lost time and/or money. In many cases, construction works continued throughout the pandemic albeit at a lesser pace due to government working restrictions. Therefore, complexities may arise in demonstrating or assessing the loss of progress due to Covid and separating the impact from pre-existing and non-Covid related issues.
“The productivity loss caused by all other events must be excluded from the claim” [1]Society Of Construction Law Delay and Disruption Protocol, 2nd Ed. Part B Paragraph 18.6
A loss of progress can result in delay and additional costs. A good starting point is to understand the entitlement to additional time, costs, or both. If the impacted activities are on the critical path, then an extension of time claim may be applicable. Even if the impacted activities are not on the critical path and delay has not been incurred, the contractor may be entitled to additional costs associated with the disruption of the impacted activity. In any case, a resource, productivity and progress analysis can be utilised to support a claim.
In simple terms, a resource, productivity, and progress analysis is an assessment of input versus output over a period of time. In the context of pipe welding, the amount of labour hours expended is the input, the diameter inches of welding completed is the output and productivity is the rate of output per unit of input. The output, or total diameter inches of welding completed, is then divided by the total diameter inches of welding to be completed to calculate actual progress achieved.
Whilst resource and productivity rates combine to provide the rate of progress, the two are not directly linked and should be assessed separately as a reduction in resource does not automatically result in a reduction in productivity. However, they can also offset each other to maintain progress, for example, if productivity halved but the resource doubled then progress would be unaffected.
“Work that is carried out with a lower than reasonably anticipated productivity rate … will lead to: (a) activity delay; or (b) the need for acceleration, such as increasing resources, work faces or working hours, to avoid activity delay; or (c) a combination of both – and therefore, in each case, loss and expense.” [2]Society Of Construction Law Delay And Disruption Protocol, 2nd Ed. Part A Paragraph 5
The units utilised in the calculations directly influence the accuracy of the analysis. In pipe welding, the records may detail spool count, the number of welds completed and the total diameter inches of those welds. The unit which best represents the lineal measurement of the works completed will provide the most accurate analysis which in this example is diameter inches. To provide a further example, quantifying the amount of tarmac required to surface a motorway by the amount of junctions would not be an accurate lineal measurement as some junctions may be 5 miles apart and others may be 10 miles.
The detail of the information contained within the contemporaneous records determines whether or not such an analysis can be conducted. To provide a benchmark, normal working methods must be demonstrated which may be derived from the planned figures or preferably input and output rates during a period of normal productivity. In order to gauge actual input and output, labour timesheets which detail the individual hours worked each day on each activity are required along with the date, size and location of each weld completed.
“Without records of planned and utilised resources it will be more difficult for the Contractor to prove entitlement to time and costs …” [3]Society Of Construction Law Delay And Disruption Protocol, 2nd Ed. Part B Paragraph 1.23
If such records exist, then analysis can be conducted which provides the most accurate assessment of deficiencies in resource and productivity. When a normal period of works is compared with an impacted period of works, to calculate the deficiencies in productivity associated with the impact, this is referred to as the ‘measured mile approach’. This is a prominent project-based analysis method endorsed by the Society of Construction Law Delay and Disruption Protocol as its preferred approach.[4]Society Of Construction Law Delay And Disruption Protocol, 2nd Ed. Intro Paragraph K (f In the absence of sufficient project records, other methods such as an industry or cost-based analysis may be appropriate.
By way of example, the figure below demonstrates the application of the measure mile approach for welding using the planned and actual productivity data:
Figure 1: Demonstration of the measured mile approach
Actual daily productivity and progress calculations can be conducted by carrying out the following steps:
Identify the number of labour hours recorded by the welding team during day 1 of the analysis;
Calculate the diameter inches of welding completed during day 1 and divide it by the number of hours worked to provide the productivity rate in diameter inches per hour; and then
Divide the cumulative amount of diameter inches completed by the total number of diameter inches to be completed to provide progress.
This method can then be replicated across all relevant days to produce a histogram comprising the planned and actual productivity and progress data. If the available project data is sporadic, weekly or monthly intervals may be used.
In the example above, the contractors productivity is lower than planned. As previously explained, to avoid delay, the contractor would need to increase its resources sufficiently to counteract the lower than planned productivity.
A similar method to the ‘measured mile approach’ can also be utilised to demonstrate the effect of Covid on the workforce. For instance, the graphic below shows that the resource hours expended during the Covid-19 (impacted) period were significantly less than the resources hours expended during the pre-Covid (unimpacted) period.
Figure 2: Loss of resource during impacted period.
Furthermore, an assessment of the planned versus actual progress can then be utilised to quantify the amount of delay accrued during the impacted period, as shown in the following chart:
Figure 3: Planned vs actual progress
The above example demonstrates that the contractor progressed the works on time until the start of the impacted period as its additional resource offset the lower than planned productivity. For example, the same rate of progress is achieved in both of the below scenarios:
100 (resource in hours) x 10 (productivity in dia inch / hour); Or
200 (resource in hours) x 5 (productivity in dia inch / hour).
However, both resource and productivity fall significantly below the planned amount during the subsequent impacted period resulting in delay. The amount of delay accrued during the impacted period has been calculated as follows:
31 July 2020 (the date at the end of the impacted period at which point 83% of progress had been achieved) less 13 April 2020 (the date when 83% of progress was planned to be achieved) less 0 days delay (accrued prior to the impacted period) = 109 days delay (accrued during impacted period)
Once the effect has been established, a timeline of potential causative events relating to Covid can be plotted onto the histogram at the point in time in which they occurred. The histogram can then be utilised to analyse the effect that the Covid related events had on resource, productivity and progress. For example, immediately after the introduction of government legislation requiring the contractor to work at 50% capacity, the histogram would show a sharp drop in resource and a reduced rate of progress (provided that productivity remained the same or less). Furthermore, the introduction of a 2-metre social distancing rule could result in decreased productivity due to welders working without assistants or changing the sequence to avoid congested areas. In this instance, the histogram would show a drop in the actual productivity achieved during the Covid-19 (impacted) period as compared to the actual productivity achieved during the pre-Covid (unimpacted) period, when the 2-metre social distancing rule had not yet been introduced.
Accordingly, the measured-mile type of disruption analysis can be utilised to compare productivity rates during the Covid period with productivity rates from an unaffected period to demonstrate cause and effect. It is noted however that this is not a viable option if the project or task was impacted from the outset.
“Care must be exercised to compare like with like. For example, it would not be correct to compare work carried out in the learning curve part of a project with work executed after that period.”[5]Society Of Construction Law Delay And Disruption Protocol, 2nd Ed. Part B Paragraph 18.16 (a
The analysis can also be utilised to separate pre-existing and non-Covid related delays occurring during the impacted period. In our previous example presented above, the deficiency of actual progress compared to planned progress immediately before the Covid delay event began represents the pre-existing delays. The histogram can then be analysed to identify changes in resource, productivity and progress which do not have a causal link to Covid. In such instances, further investigation would be required to establish the true cause of delay.
Conclusion
The importance of good record keeping throughout the entirety of the project cannot be emphasised enough. Not only does it assist with the preparation of claims, but it also allows the parties to identify and take a proactive approach towards mitigating delay. Therefore, provided that records detailing the input and output rates were recorded consistently, a resource, productivity and progress analysis can be undertaken to assess the disruptive effect of Covid (or any other event that might affect productivity for that matter). A productivity and/or resource histogram can then be plotted and used as a basis for establishing the causative links between the various events (both Covid and non-Covid related) and their effect on the project. If a cause and effect link can be established and contractual entitlement exists, then this form of analysis can be used to support a Covid claim for additional time and/or cost.
Jon Bird joins HKA as Technical Director in the Forensic Technical Services team.
28th November 2022
HKA announced today that Jon Bird has joined HKA as Technical Director in the European Structural Engineering expert team, based out of the Birmingham office.
Jonis a Chartered Civil & Structural Engineer with over 25 years of experience on a variety of commercial, educational, industrial, rail and residential projects. He is experienced in the commercial delivery of projects and financial reporting, as well as managing a profit & loss centre.
Jon has team and project management experience on a variety of projects, including leading multi-disciplinary teams and also has a thorough understanding of a wide range of structural analysis and design software packages, including finite element analysis. Jon is also on the Institution of Structural Engineers (IStructE) Examinations Panel having served as a Chief Examiner, and is also an Institution of Civil Engineers (ICE) Reviewer.
Jon has been involved a number of structural disputes with experience in the preparation of written evidence, expert meetings and preparation for adjudication/arbitration. Jon has attended hearings as a technical assistant.
“I’m delighted to welcome Jon to the expanding structural engineering expert team as we grow in capacity and breadth and depth of expertise. With 25 years of experience in the construction industry as a consulting engineer, Jon has a huge range of projects under his belt, and is a Fellow of both the ICE and the IStructE, a real role model for engineers and someone myself and my colleagues look forward to learning from and working with. We are lucky to have him lend his wealth of experience to forensic work!”
ABOUT HKA HKA is the world’s leading consultancy of choice for multi-disciplinary expert and specialist services in risk mitigation and dispute resolution within the capital projects and infrastructure sector. We also have particular experience advising clients on the economic impact of commercial and investment treaty disputes and in forensic accounting matters. In addition, HKA supports companies that conduct business with the US Federal Government, providing them with consulting services on complex government contracting matters.
As trusted independent consultants, experts and advisors, we deliver solutions amid uncertainty, dispute and overrun, and provide the insights that make the best possible outcomes a reality for public and private sector clients worldwide.
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Thomas Barnes & Sons PLC (in Administration) v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC)
A recent case in the TCC has provided comment on the perennial issues of delay analysis methodologies, causation and concurrent delay.
Thomas Barnes & Sons (“Barnes”) was appointed by Blackburn with Darwen Borough Council (“Blackburn”) in 2014 under an amended JCT SBC 2011 with Quantities, to construct Blackburn bus station to an innovative design, comprising a “Hub” area for offices at ground and mezzanine levels and a “concourse” providing a waiting area and access to buses.
The appointment of Barnes was terminated on 04 June 2015, who then brought an action for unfair termination, an extension of time and prolongation costs for a period of 209 days over and above EOT of 84 days awarded during the Works.
Delay Analysis Methodologies
Delay experts appointed by both parties referred to methodologies identified in the SCL Protocol, with the Barnes expert referencing the “as-planned versus as-built” methodology and the Blackburn expert, referencing a hybrid time slice and time impact analysis.
In cross-examination, it was contended that the Barnes expert had not followed the as-planned v as-built method and that the Blackburn expert, had relied on a methodology that was more relevant to a prospective rather than a retrospective method of analysis.
HHJ Stephen Davies commented:
“Both arguments had some force. However, in my judgement it would be wrong to attach too much importance to a close analysis of whether each had properly chosen or loyally followed the particular method selected.The SCL Protocol itself discourages such an approach.” [para. 109 – emphasis added]
“Thus it would be wrong to proceed on the basis that, because the SCL Protocol identifies six commonly used methods of delay analysis, an expert is only allowed to chose one such method and any deviation from the stated approach renders their opinion fundamentally unreliable…… However, I do accept that if an expert selects a method which is manifestly inappropriate for the particular case, or deviates materially from the method which he has said he is following, without providing any, or any proper, explanation, that can be a material consideration in deciding how much weight to place on the opinions expressed by the expert.” [para. 110 – emphasis added]
He went on to reference four observations made by Akenhead J in Walter Lilly & Company Ltd v McKay [2012] EWHC 1773 (TCC):
The court does not have to choose either analysis. It is a matter for the court to decide if, how, and to what extent the works were delayed.
In determining what is causing delay at a given time “….one should generally have regard to the item of work with the longest sequence” [para. 113]
“….it is not necessarily the last item of work which causes delay” [para. 114] or in other words, effect should not be confused with cause.
“…a complaint is irrelevant to a delay analysis it if was never agreed upon, established or implemented” [para. 115]or in other words, cause and effect turn on fact.
How these observations became relevant to the dispute is a reminder that common sense and facts, can have greater cogency than the arithmetic of activity durations, logic linking and float values in determining the critical path(s).
Critical Paths, Causation and Delay
A significant part of the dispute arose from the criticality of the roof coverings, as opined by Blackburn’s expert, and in the same period, the criticality of the hub steelwork deflection issue, as opined by Barnes’s expert.
Specifically, Barnes’s expert opined that critical progress was dependent on the resolution of the steel deflection issue, which would have allowed the casting of the first-floor slab to the hub, to allow the SFS installation to progress, to form the external envelope which, in turn, would allow hub finishes to progress.
It was agreed that the casting of the hub first floor slab was delayed from early October 2014 when the deflection issues were first identified, through to 30 January 2015, leading to the delayed casting of the hub first floor slab on or by 06 February 2015 that in turn delayed the progression of hub finishes.
Conversely, the roof coverings started on 03 November 2014, delayed from the planned start of 23 September 2014, and, following the delayed start, subsequent progress was further delayed, such that the roof coverings were completed on or around 23 February 2015, that in turn allowed the hub finishes to progress.
Blackburn’s expert opined that because of the roof covering delay, the critical path did not switch to the steelwork deflection remedial works until 09 December 2014, resulting in a delay of 39 days to 30 January 2015. This reduced the Employer culpable delay to 27 days after an allowance of 12 days due to Barnes’ failure to act on an email from the structural engineer in January 2015.
The roof covering delay was a Contractor culpable event and the steelwork deflection issue an Employer culpable delay event.
Why did the experts have opposite opinions on the route of the critical path in the same period?
HHJ Stephen Davies summarised the opinion of Blackburn’s expert:
“…the GRP roof cladding could not progress until the roof coverings had begun, and because the roof coverings needed to be progressed before a start could be made on the internal finishes and services to the hub and concourse areas and the concourse glazing. It is obvious, I agree, that the GRP roof cladding and the concourse glazing cannot be progressed in an area until the roof coverings are in place in that area and also that the majority of internal finishes and services cannot be progressed until the roof coverings are in place so as to give protection from the elements.” [para. 132 – emphasis added]
Barnes’s expert was broadly in agreement with the Blackburn expert in that he opined that the internal works could not progress until the roof coverings and SFS to external walls were complete such that the working area was watertight and weathertight but with the fundamental exception that the critical path ran through the SFS, which was driven by the steelwork deflection issue and not the roof coverings. This was because the SFS was completed after the roof coverings and therefore, the SFS and not the roof coverings were critical to the progression of internal finishes. Consequently, he did not consider the roof coverings to be a cause of critical delay.
“His view was that since the delay due to the hub steel deflection issue continued throughout and beyond any delay due to the roof coverings issue, the latter was not a relevant cause of delay to completion.” [Para.116 – Emphasis added]
Blackburn’s expert opined that the Barnes as-planned programme demonstrated that concrete topping and subsequent hub SFS installation were planned prior to the roof coverings and that on this basis, the structural steelwork remedial works demonstrated float and therefore, were non-critical until 09 December 2014.
HHJ Stephen Davies concluded:
“Whilst I am prepared to accept this evidence from a theoretical delay analysis viewpoint, comparing the as-planned programme with the position at various points in time, it does not seem to me to be a sufficient answer to the point on causation, which is that on the evidence the fact is that the delay to the remedial works to the hub structural steelwork and the delay to the roof coverings were both causes of delay over the period identified by Mr x [Blackburn’s expert] where the roof coverings were delayed. Even if there had been no delay to the roof coverings the hub finishes, which it is agreed were on the critical path, could not have started earlier because of the delay to the remedial works to the hub structural steelwork.” [para. 143 – emphases added]
“I am also satisfied that the converse is also true. The claimant cannot simply say that because there was a problem with the hub structural steelwork identified in October 2014, which was not finally resolved until January 2015, all of the delay between those points in time was only caused by this cause. It ignores the fact that for a very considerable period of time there was also a problem caused by the delay to the roof coverings which was itself a cause of delay to the critical path...” [para. 144 – emphasis added]
“In his report Mr Y [Barnes’s expert] made only passing reference to the other potential causes of delay to the hub building…If by this he meant to suggest that the roof coverings could have been progressed but they were non-critical and could have been performed in a more leisurely manner as a result, this seems to me to ignore the fundamental fact that throughout the crucial period from October 2014 through to January 2015 the claimant could not have known how long the remedial works to the hub steelworks would take and could not therefore reasonably have proceeded on the basis that there was no need to worry about the roof coverings until the hub steel deflection issue was completely resolved.” [para. 133 – emphasis added]
“In my judgement this is a casewhere these causes were concurrent over the period of delay caused by the roof coverings. That is because completion of the remedial works to the hub structural steelwork was essential to allow the concrete topping to be poured and the hub SFS to be installed, without which the hub finishes could not be meaningfully started,but completion of the roof coverings was also essential for the hub finishes to be meaningfully started as well. It is not enough for the claimant to say that the works to the roof coverings were irrelevant from a delay perspective because the … the remedial works to the hub structural steelwork were continuing both before and after that period of delay. Conversely, it is not enough for the defendant to say that the remedial works to the hub structural steelwork were irrelevant from a delay perspective because the roof coverings were on the critical path. The plain fact is that both of the works items were on the critical path as regards the hub finishes and both were causing delay over the same period.” [para. 140 – emphases added]
“It follows on an application of established principles as noted above that the claimant is entitled to an EOT for this period of time.” [para. 145 – emphasis added]
HHJ Stephen Davies went on to conclude that amended clause 2.29A did not alter this conclusion because the critical delay to the hub remedial works “…was not a circumstance arising by reason of any error, omission, negligence or default of the claimant or its subcontractors” [para. 146] and therefore, the clause did not negate or reduce EOT entitlement in the circumstance of concurrent delay but reinforced that the Claimant was not entitled to recover loss and expense for the concurrent period of delay:
“It follows in my judgment that the claimant is entitled to an EOT of 119 days… However, it also follows that the claimant is only entitled to recover for prolongation for the lesser period of 27 days net of the concurrent delay due to the steel frame deflection.” [para. 148]
It is unclear where the 27 days of loss and or expense falls, but it would be reasonable to conclude that it arises in a period when there was no concurrent Contractor culpable delay.
As a final point, whilst the steel deflection remedial works represented an Employer delay event, the right of the Contractor to an EOT was subject to a duty to use “best endeavours” to prevent delay.
HHJ Stephen Davies accepted that the steelwork remedial works could have been undertaken after the casting of the first-floor slab, allowing the slab to be cast earlier, provided it was cast in 2 parts, but acknowledged what he considered to be a reasonable position taken by Barnes’s expert that unless instructed, he would not have expected a contractor to incur additional costs by casting the slab in 2 parts and, there was no reliable evidence of the time, if any, that would have been saved had this been undertaken.
The judgment maintains the established principle for concurrent delay under English Law, of entitlement to an EOT, but not entitlement to loss and expense, and, whilst the facts vary between disputes, provides useful guidance on how the courts continue to take a common-sense approach to delay.
The credibility of a methodology turns on whether it is appropriate in the circumstances, supported by a coherent explanation and based on the facts.
“…irrespective of which method of delay analysis is deployed, there is an overriding objective of ensuring that the conclusions derived from that analysis are sound from a common-sense perspective.” [para 11.2 SCL Protocol – emphasis added]
Deviation from the SCL Protocol does not automatically render an analysis methodology unreliable because the objective of the Protocol is to provide useful guidance consistent with good practice rather than a benchmark for good practice.
The SCL Protocol is not prescriptive and therefore provides the opportunity for variance, within the rationale of each methodology.
The duty of a delay Expert is to assist the court but ultimately, the court will decide the critical path and cause and effect of delay events based on the facts.
The position on concurrent delay, EOT and entitlement to loss and expense under Scottish law, other common law jurisdictions and civil law jurisdictions is different
