Lawyer Monthly Magazine - August 2019 Edition

do not have a preferred method. There is a plethora of methods available to us. The Association for the Advancement of Cost Engineers International (AACEI) recommends nine methods for conducting retrospective delay analysis. Those nine are further broken down into sub- methods which results in a total of seventeen variations for analysing delay. The SCL Protocol recommends six different methods. Five of those can be identified within those recommended by the AACEI. The complex and unique nature of construction contracts, which has persisted despite recent technological advancements, means that delay analysts ought to consider project specific criteria when deciding which method of analysis to deploy. A number of these are set out in the SCL Protocol. I agree with all of them. However, in my opinion, there are two that bear a disproportionate weight of importance to the others; firstly, the contract conditions (remember… “The Contract is King”) and secondly the nature, extent and quality of available contemporary information. If the contract remains silent on the choice of methodology and approach to delay analysis, then I ask my clients: “Is there a baseline programme? Are there contemporaneous programme updates? Is there an as-built programme?”. That would be the first tier of the factfinding questioning. The second would be: “Are there photographs, videos, progress reports, minutes of meetings, relevant written communications?”…You can see now why contemporaneous records are central to delay analysis. What I have described is by no means an exhaustive list of the information that is normally required. Only after I receive answers to these questions can I conclusively decide on a method to use. Is Delay Analysis a ‘Dark Art’? No, it is not. I do get asked this question a lot. “If it is not, then what is it?” … I hear you asking? To answer this question, we first need to answer: what is a dark art? I wonder – is it a satirical term used to describe black magic? And if it is, what is black magic? The Oxford dictionary on my desk tells me that black magic involves “the supposed invocation of evil spirits for evil purposes”. I do not think this is what would normally be meant in this context, although I do think it is used in a semi-satirical way to describe delay analysis; mainly because it is a process that is technically complex, but based on the apparently tangible. It appears as if it should be simple to follow and the answers obvious – but it is normally not simple to follow and the obvious answer is often not the correct answer. If performed for ‘non-evil’ purposes, independent of the interests of the instructing party (as an expert witness my duty is to be independent), delay analysis is the analysis of facts drawn from contemporaneous records, making use of programme presentation. The programme is an algorithm for scheduling, in other words, it is a mathematical model incorporating logical dependencies, which determine the critical and near-critical paths of the project – and it is crucial in the assessment of delays. Based on this model the delay analyst determines, on the balance of probabilities, the causal links for the delays suffered ... I see no art or magic in this process! LM I am a Chartered Civil Engineer and Delay Expert with Diales. I have gained 30 years of experience in the construction in- dustry. Diales is the expert witness division of Driver Group Plc; its expert teams’ specialities include delay analysis, quantum, project management, technical and asset valuation. At the age of 19, I undertook my very first job placement as a junior site engineer on a residential development near Tower Bridge – a memory that is still vivid in my mind. I found working on building and civil engineering sites highly rewarding, chal- lenging and exciting. That experience prompted me to spend most of my career in the construction sector. Before becom- ing a delay expert, I took up different roles: that of a Resident Engineer, Construction Manager – “Construction Agent” in the old days – Planning Engineer, Planning and Commercial Manager. I have worked on construction sites in Europe, the Middle East and Asia. Although I am based in London, I am still involved in multimillion-pound international projects. When I decided to move into the world of dispute resolution, about 11 years ago, I joined Driver Trett. Driver Trett is the con- sultancy division of Driver Group Plc, within which I hold the position of Technical Director. Driver Trett provides special- ist commercial management, planning, programming and scheduling, and project management services. Whereas Di- ales provides expert witness services. As a delay expert for Diales, I provide support to the Courts, Arbitral tribunals, and other Alternative Dispute Resolution panels. I have acted as a party appointed delay expert on several projects. I undertake expert appointments for public buildings, including high-rise residential construction, ship- building, FPSOs, tunnelling, the oil & gas industry, the off-shore wind and nuclear power sectors. My services involve carrying out delay analysis, preparing independent expert reports and liaising with counsel and instructing solicitors. I have extensive experience in adjudications and arbitrations, and I have also given oral evidence in international arbitration proceedings. Maria Fisentzou 110 Cannon Street, London, EC4N 6EU Email: maria.fisentzou@diales.com Office: +44 207 377 4944 | Mobile: +44 7768 895 778 ABOUT MARIA FISENTZOU CONTACT 53 AUG 2019 | WWW.LAWYER-MONTHLY.COM Expert Witness By Maria Fisentzou, Diales