Issue 12 | September 2016 Aristotle, bullets, and cars that fly. Issue 12 | September 2016 Welcome to the Driver Trett Digest Welcome to this latest, and largest to date, Also in the mix you will find the eternal issue of the Driver Trett Digest. battle for better records, food for thought I was asked recently to speak to a group regarding the future of diversity in the of our client’s senior staff and future lead- construction industry, further technical ex- ers, about the ways in which we have de- pertise pertaining to fire safety and curtain veloped and improved our business. The walling, a summary of the 2015 ICC Dis- 18 Digest was one example I used. We have pute Board rules, and even our homage to a rule that each time we produce an issue, that popular summer topic of Brexit. 4 it needs to be an improvement on the last We welcome some new members one. This can create tensions when early to the Driver Trett team in the Western drafts are rejected. Sometimes the en- Region of Canada and introduce a new hancements required relate to presenta- DIALES technical expert, topped off with tion or graphics and sometimes they relate a couple of new Digest Bytes with a techni- to content. Small gains are made in each cal flavour. issue, but when we look back over the past Finally, we are proud to announce 22 11 issues, the improvements are manifest; our training partnership with the Char- 8 and this serves to inspire the whole team tered Institute of Civil Engineering Sur- to new levels of quality. Ultimately, driving veyors (ICES). Bill Pryke, CEO of ICES, continuous improvement across the busi- is interviewed and shares his views on ness is what makes us stand out from the the benefits of this arrangement to both competition, and our management team members and the wider industry. Driver are committed to continuing this trend. Trett’s commitment to quality and driving Our business has grown considerably up standards was one of the key features in recent years, this is reflected in the wid- that helped us come to an agreement 12 24 er range of services and expertise on offer, with ICES, and we are excited to be work- across the globe. This issue is a testament ing with this strong and forward-thinking CONTENTS to that; our structural ability is showcased institution to deliver excellent training to on the front cover with the spectacular support our industry professionals. ■ The Silver Bullet P2 Goodwood sculpture, David Wileman I hope you enjoy this issue of the Di- ■ Post-It Notes and iPads P4 offers his thoughts on the ‘silver bullet’ gest. If you would like to contribute in the in delay analysis, and guest contributor future or share any feedback, please do ■ Implication and Interpretation P6 Stephen Homer discusses implication and drop me a line. interpretation in contracts. Paul Gogarty ■ Smash and Grab P8 looks at the perennial problem of contra Mark Wheeler ■ Contra Charges P10 charges and Nicola Huxtable does some Chief Operating Officer, Europe and smashing and some grabbing. Americas ■ Brexit and the Definition of an Expert P12 ■ Q&A: Professional Training and Development P13 ■ Goodwood Festival of Speed Sculptures P14 ■ The New 2015 ICC Dispute Board Rules P16 ■ Disruption and Cumulative Impact P18 ■ Records, Records, Records P20 ■ Aristotle and the Acrobats P22 ■ How Safe are you from Fire? P24 ■ Curtain Walling P26 14 ■ Meet the Team in Western Canada P28 Cover image courtesy of Steven Stringer 1 The silver bullet – food for thought In a meeting with a client the other day I susceptible to the fabled silver bullet, but things when it comes to disputes involving DAVID WILEMAN – DIALES EXPERT, SEARCHES FOR THE ELUSIVE ‘SILVER was asked a question which I have been unfortunately there never seems to be one delay. Every now and again I have been BULLET’ AND EXPLAINS THAT YOU’LL asked on many occasions. The question around when you need it most; be it on involved with disputes that quickly turn OFTEN NEED MORE AMMUNITION was: “Is there a silver bullet that will make a dark misty night in an old graveyard or on the interpretation of a contract clause, THAN THIS SINGULAR, MYTHICAL this dispute go away?”. the well-appointed office of a blue chip or can immediately settle due to issues PROJECTILE. Werewolves, and the other party to company. of waiver, or even the parties coming to a dispute, are always regarded as being The ‘Silver Bullet’ is the most elusive of a meeting of the minds on which docu- THE ELUSIVE SILVER BULLET The importance of contemporaneous records is not lost drink driving. The defendant’s lawyer, who is now also recognised a silver bullet when he saw one. on our legal partners (lawyers and barristers) who also known for posterity as Citizen ‘N’, was examining docu- Later CCTV images show Citizen ‘N’ eating that know and understand the importance of such contem- ments, relating to the charge his client was facing, when particular silver bullet, or as some may say, ‘wolfing it poraneous evidence. In fact, such a case was reported he was briefly left alone with the contemporaneous down’! For the record, Citizen ‘N’ is now facing up to recently in the Times newspaper¹, where the defend- documents. CCTV cameras caught Citizen ‘N’ tearing two years in jail or a 200,000 rouble (£2,100) fine. As ant’s lawyer recognised the importance of contemporary off a slip of paper confirming the defendant’s positive for his client, it is still unclear whether the prosecution evidence. In this matter there was a silver bullet. breathalyser test from one of the documents and slip- will go ahead. The case involved a defendant who was accused of ping the evidence into his pocket. Citizen ‘N’ certainly ¹ http://www.thetimes.co.uk/tto/news/world/europe/article4739659.ece 2 FIGURE 1 SUMMARY OF COMMON DELAY ANALYSIS METHODS Critical Path Delay Impact Method of Analysis Analysis Type Determined Determined Requires Logic linked baseline programme. Impacted As-Planned Analysis Cause and Effect Prospectively Prospectively A selection of delay events to be modelled. Logic linked baseline programme. Update programmes or progress information with which to Time Impact Analysis Cause and Effect Contemporaneously Prospectively update the baseline programme. A selection of delay events to be modelled. Logic linked baseline programme. Time Slice Windows Analysis Effect and Cause Contemporaneously Retrospectively Update programmes or progress information with which to update the baseline programme. As-Planned versus As-Built Windows Baseline programme. Effect and Cause Contemporaneously Retrospectively Analysis As-built data. Baseline programme. Longest Path Analysis Effect and Cause Retrospectively Retrospectively As-built programme. Logic linked as-built programme. Collapsed As-Built Analysis Cause and Effect Retrospectively Retrospectively A selection of delay events to be modelled. ments constitute the contract. client in distress. Disputes involving delay, unfortunately As per Figure 2, a silver bullet can Forensic delay analysis feels more like the or fortunately (depending on your stand become more like a thousand, mini, point), are rarely that simple as there silver bullets. Each one providing a small battle of Waterloo. are generally very few opportunities to amount of information that separates shortcut the work involved. the claim into its constituent parts. In FIGURE 2 - WHAT IS A SILVER BULLET? Forensic delay analysis feels more like this manner claims are prosecuted (and the battle of Waterloo. It requires exten- defended) without the accusations as to The simple truth is that, with respect to delay, disruption, and prolongation disputes, sive, methodical, and meticulous analysis whether the claims are global, thereby the ‘Silver Bullet’ is to: of prospective programmes and as-built allowing each event to be linked to its data, overlaid with painstaking research effect in time and monetary terms. 1. Understand where risk lies in the contract. of the matters of fact, in order to assist The key to the successful pursuance 2. Prepare a robust baseline programme which incorporates risks, key dates, etc. a judge or tribunal to understand the and defence of claims, as always, is 3. Understand your baseline resource and plant requirements. planned intent and how and when the making sure that appropriate, contem- 4. Update your programme on a periodic basis. actual works deviated from that planned poraneous records are consistently 5. Address the time related impacts of variations as they occur. intent. prepared and stored in a readily available 6. Understand growth to resource and plant requirements. In the Driver Digest Issue 11, dated and suitable manner; which with ever 7. Understand your own culpability with respect to delay. March 2016, we discussed Rider 1 to the changing IT and email systems is an art in 8. Prepare your updated analysis in a manner that allows delays of differing October 2002, Society of Construction itself. It is these documents that will be of responsibility to be separated. Law (SCL) Delay and Disruption Protocol. primary importance in the prosecution or 9. Archive official baseline and re-baselined programmes for easy retrieval. This article summarised the pertinent defence of claims. 10. Differentiate between costs due to base work, delays, and disruptive costs and points of Rider 1 and provided the table The moral of the story is that we allocate accordingly. in Figure 1. generally deal with complex disputes, 11. Prepare cost value reconciliation reports to show where money is being lost on a The right hand column of the table and whilst every now and again there periodic basis. sets out, in very brief terms, the minimum may be a ‘silver bullet’ which knocks 12.