Legal: Dissecting delay

Robert Gemmell is the author of Quantification of Delay and Disruption in Construction and Engineering Projects (published by Thomson Reuters). Don’t be put off by the £165 price tag – this fellow has produced an encyclopaedic textbook running to 840 pages. And hoorah for the publisher sending you the hardback edition, you get it online too. I have known Robert Gemmell for umpteen years. He knows his construction stuff – an RICS man, with a master’s degree in construction law. His big book takes in the topic from UK cases, together with Australian and American ones. 

Late completion takes up five chapters. Disruption takes up the remainder of the book. I heard myself say on the topic of lateness and its 500 pages, “This is very useful.” I heard myself say of the 400 pages on disruption, “This is superb.” Robert Gemmell is in his stride, in his element, with disruption. It made him think, made him dig and delve. He has done, in this part, what I personally want: I want to hear the author; I want their views and ideas. The author will have sat at a desk for hours and days on end and thumbed commentaries, cases, nooks and crannies, devoting energy to this damned topic – disruption, in this case – instead of taking the kids to Disneyland. By now they must be able to criticise, stimulate thoughts. And if the reader disagrees, that’s all to the good. Gemmell and his disruption topic made me think.

Anyone with experience in construction can see cause and effect and cost by weighing all the circumstances under their nose. The trouble is that those earning a living out of disputes will look down that nose on common sense

In the first 500 pages he collects inter alia the cases about “lateness” and asks the judges to make the reader think. It is hugely useful to have the book recite from 15 key “late” cases. They, at least, tell me that the topic is not straightforward, tell me that a flashing amber light throbs across late-completion claims. Now attempt to put in the mix “methods of delay analysis”. Chapter four tells us about these devices … collapsed as built … time impacted … etc, etc in five pages. Then asks which method to use. I had hoped that the author would let rip about this black art. He didn’t.

I then came to the chapter on disruption. Gemmell lists the several methods used by practitioners to calculate loss of productivity: eight, he says. I would add (but not now) a ninth: common sense. He reminds the reader that “the measured mile method is often considered to be the most robust and reliable method” but, hooray, quarrels with that idea. The author has done a lot of research on a system he calls the “baseline productivity method”. 

Suddenly his book takes off. He puts up “six significant improvements”. And if I recited them here, you would do well to fathom what is being talked about. My nudge in the ribs for the author is to find some everyday builder’s language for his most welcome idea – because “earned value concept”, “data management practices”, “productivity curves” is err, umm lawyers’ stuff. Look, a disruption claim is all about the plasterers walking off site because they are being messed about. Then the claims expert tries to put up a retrospective claim to the main contractor, who in turn blames other subcontractors or the employer, or the plasterer. I have a feeling that our four plasterers only use “earned value concepts” when buying four pints of beer in the pub. A good, clever book, notwithstanding.

The relatively skinny, 148-page book by Ali D Haider and Peter Barnes (ICE publishing) is £55.00. It’s called Delay and Disruption Claims in Construction (third edition). I love it. Probably because, I reckon, it is ideal for the everyday small subcontractor wallah running that plastering firm. He priced the job from 30 years of pricing, bidding and doing the work. He priced competitively on the reasonable expectation that when his blokes started on the Monday morning, they would plaster, and that by Friday in six weeks’ time, they would be finished: six weeks x five days a week x four blokes, a labourer and a lad. He knows his labour rate and cost. I don’t have to tell you about confounded hiccups. This book tells you. 

Like Robert Gemmell, I have known Peter Barnes professionally for some decades. He too knows his construction stuff. The charm of this skinny book is that it is industry friendly. The lawyers might want Gemmell, but give Haider & Barnes to the recently qualified solicitor or barrister, or those lawyers taking a break from murders to muddy building sites. It’s all there in a nutshell. Concise paragraphs nail an immediate, clear understanding. Look, for example, at how the authors take the issue of concurrent delays from the Walter Lilly case – and bingo, the position is so well explained.

Missing from both books is the willingness to deal with late completion and deal with disruption on a commonsense basis. Earlier I used the phrase “black art”; it is what we disputomaniacs have built to explain cause and effect via complex court-like and often-unfathomable devices. In real life, anyone with experience in construction can see cause and effect and cost by weighing all the circumstances under their nose. The trouble is that those earning a living out of disputes will look down that nose on common sense.