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DEVILISH DELAYS

LEGAL

The devil, we are told, is in the detail, writes Kim Franklin.

We overlook apparently insignificant matters at our peril. This natty little idiom translates rather neatly into a legal context, where the devil is frequently to be found lurking in the small print. But there is another demon out there, destined to confuse and bewilder lawyers and laymen alike - that of terminology.

Inevitably, where sophisticated business people deal with complex concepts on a regular basis they tend to use shorthand and jargon. We do not always refer to 'liquidated and ascertained damages for delay', but use the handier 'LADs' (strictly 'LAADsD' of course). The problem with these tags arises when they become detached from their original meaning and develop a life of their own. And worse still, when everyone thinks they know what, for example, a 'letter of intent' is without stopping to enquire whether everyone else's understanding is the same.

Nowhere is this problem more endemic than in the dark art of delay analysis.

If a construction project is completed after the contractual completion date, it costs the client more than they expected.

Here, time is most definitely money. As projects become increasingly complex, the methods by which the parties seek to demonstrate responsibility for the delay compete with each other in sophistication, intricacy and overall incomprehensibility.

The rivals contend that there was no delay; or that there was, but it was not critical; or that the contractor was forced to accelerate to minimise the delay; or that it was concurrent with culpable delay. Stepping back from the multicoloured 'as built, but for' and 'as planned, impacted' charts, a more fundamental challenge awaits the uninitiated. What do these words actually mean?

This is a question well worth asking. For starters, the word 'delay' can be used as a noun, an adjective or a verb, as in 'the delay to the delayed contract delayed completion'.

In the leading text this issue, Delay And Disruption In Construction Contracts, Keith Pickavance identifies no fewer than 23 possible meanings for the word, from the fairly obvious 'impact on the date the contractor agreed to complete', to the more technical 'event at the risk of the contractor under the contract'.

The term 'acceleration' fairs no better. In Ascon v McAlpine (1999) the judge observed that 'acceleration' tends to be bandied about as if it were a term of art with a precise technical meaning, but that he found nothing to persuade him that this was the case.

'Concurrent delay' is perhaps the most misunderstood term of all. In a Society of Construction Law paper on the topic, John Marrin QC explained: 'The expression ficoncurrent delayfl is understood differently in different quarters and definitions are scarce.' After eliminating five possible examples, he concluded that concurrent delay referred to 'a period of project overrun caused by two effective causes of delay of approximately equal causative potency'.

So the next time someone suggests that concurrent delay extinguishes any entitlement to prolongation costs, ask them what exactly it is they mean.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com

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