Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 19
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How speci昀椀c problems caused the project to slow
down and identi昀椀ed critical delay to completion.
By working through the project periodically, they
were able to identify the critical path and evidence
delay against as-built site records. This made their
explanation easy to follow and hard to argue with.
The Court said this was a sensible and reliable way
to show cause and e昀昀ect while acknowledging their
analysis “is actually derived from a detailed analysis
of the facts and documents of the project”.
The lesson is simple: Methods based on real progress
are easier to trust than methods based on imagined
alternatives or reliance on over complicated software
modelling.
What About Industry Guidance?
The defendant complained that the referees
preferred an approach that followed guidance
from the Society of Construction Law Delay and
Disruption Protocol. They argued that the Protocol
was not part of the contract, so it should not be
relied upon.
The Court agreed that the Protocol is not legally
binding. However, it also said that it is helpful
guidance on how delay analysis should be done
properly. While Judge Freeburn noted “…the SCL
Protocol is not a straitjacket…”, following it shows
that an expert understands accepted industry
practice.
Freeburn added that “…the referees were
uncomfortable with the logic of [the defendant’s
expert’s] departure from the agreed SCL Protocol
methodology”. This case provides a gentle reminder
to all of us that whilst the Protocol is not law, it is still
a useful benchmark for professional behaviour.
Evidence Matters More Than Theory
The referees decided that one party had clearly
shown how breaches caused delay and the other party
had failed to show any real alternative explanation.
The Court agreed with this.
This highlights an important point:
Delay analysis is not about debating possibilities.
It is about proving what happened using facts and
records. If an expert cannot connect delay events
to real site activity, their opinion is unlikely to be
trusted or relied upon by decision makers.
The Importance of Record Keeping
An important lesson from the case is the critical role
of good record keeping in construction projects.
Delay analysis is only as strong as the evidence
that supports it. Contemporaneous records such
EXPERT WITNESS JOURNAL
17
AUGUST 2026
