Helpful Tips For Adjudications In Delay Claims
Adjudication refers to a compulsory mechanism for dispute resolution using which an arbitrator or an adjudicator review evidence and arguments along with legal reasoning presented by both parties in order to reach a decision which will determine the rights and obligations between parties.
Construction disputes are highly reliant on expert consultation and evidence. Clients often need experts to work with them to determine what may have gone wrong. And many parties also use their help before opting for court proceedings. Delay experts may be referred to, in the case of construction delays in order to help out with the construction claims more uniformly and consistently.
Delay Claim Adjudication Tips
The following text aims to highlight useful tips which both the referral and the respondent parties can use in order to provide a sustainable case in the delay claim adjudication proceedings.
Tips For The Referring Party
The referring party that is claiming an extension of time should:
Provide an explanation for the delay events using accompanying evidence. The inability to present a set of evidence will not be persuaded to grant an extension, even consider the option, in the presence of only the as-built and as-planned program without any pieces of evidence.
The explanation of the delay events should be:
Presented in the narrative of the referee or in the witness statement, and a member of the team that has been on-site and is well aware of the specifics of the project. Entities and parties that are disconnected from the actual aspects of the project and have minimal knowledge should not be acquired for the explanation.
The explanations of the delay events will be cross-referenced to the comprehensive evidence provided including all the plans and minutes of meetings. Even photographs provided by the teams can hold great importance in the delay claim adjudication sessions since the adjudicator may not have visited the site himself.
The delay events to be discussed must include those that caused a critical delay. This refers to the events which led to a delay in the completion of the project, extending the completion date beyond the initially planned completion date.
Most parties include delay events which may have delayed the project, however; they aren’t critical delays which waste the time of all parties involved.
The evidence provided with the delay analysis should be used, wherever necessary. For mega projects, it remains an essential piece of the puzzle when demonstrating critical delays to adjudicator experts
Importance of the right expert and the right technique for delay analysis
Your choice of experts should be able to convey to the adjudicator, their competency and capability in the matters of delay. He should be aware of the essentials of project planning, which is why it is essential to choose an entity that has multiple years of experience in the industry and certifications that certify his knowledge and his abilities.
The inability of your party to present an expert in front of the adjudicator conveys that their competencies are merely limited to the use of delay analysis software.
The party claiming to be the expert should be an employee of one of the parties. However, they should be well aware of their duties in the delay claim adjudication process, of maintaining an unbiased meticulous approach towards the scenario.
The technique implemented depends mostly on the evidence that is available. For instance, in the absence of an as planned program, other techniques will have to be used.
Test the submitted documents and evidence. Although the idea may seem a little impractical, it is always better to hire an experienced adjudicator to review claims before they are submitted to get an overview of the documents.
Tips For The Responding Party
Some of the tips that have been mentioned above may apply to responding parties that are defending extension of time claims in the adjudication sessions; however, some specific tips for the respondent include:
Progressing with a positive case when replying to delay claims. Although the offensive approach which is limited to attacking the delay claims and the reasons that the referring party gives in its defense is preferable, however, the defensive approach may help out a lot too. Respondents can refer to the actual situations that caused a delay in order to present a positive case in front of the adjudicator.
The respondents should also be using expert delay analysis wherever necessary. Not only this! The responding parties may feel that the use of a different delay tool may provide a more accurate way to analyze delays however it is appreciable for the responding parties to use the same kind of technique for delay analysis as the referring parties.
Respondents shouldn’t rely on the referral party’s lack of evidence pertaining to the expert delay analysis, as their only defense in adjudication since the adjudicator may find that regardless of the lack of expert evidence an extension is due. For instance, for an obvious delay event, a detailed delay analysis may not be required by the adjudicator to reach a decision.
Takeaway
Be it delay claim adjudication, arbitration or mediation; delay experts remain an important aspect of all construction claim disputes. Hiring experts with experience and knowledge about the construction industry can impact positively, the proceedings in the case of in court and court or court settlements.
