as an analysis carried out retrospectively.” This revised position accepts that each analysis approach would result in a different conclusion and acknowledges that a retrospective analysis, if done correctly, should (a) be informed by what actually happened, and (b) take into account a number of delays; both considerations which a prospective approach would not consider. Additionally both approaches are, to some degree, subjective which further gives rise to differing results. A prospective analysis is dependent upon the programme utilised and the means by which the delay event has been impacted onto it. The results of this analysis are also dependent upon the delays which are impacted and, in modelling delays in isolation, there is the risk of not considering other delays which may be in operation, be they potentially dominant, concurrent or parallel. A retrospective analysis can also be subjective in nature on the basis that frequently a number of delays and causes for these may be present and, in arriving at a conclusion as to which delay is dominant, concurrent or in parallel, there is usually the need to apply experience and judgment.
Is one approach to be preferred over the other? The Court, in this recent judgement, indicated that a prospective approach to delay analysis “… is the correct approach when considering matters such as the award of an extension of time…” From a practical perspective this is sensible given that, in the interests of a project as a whole, it would be beneficial for extension of time applications and assessments to be dealt with and accounted for at the earliest possible opportunity. This approach would lend itself to a contemporaneous and prospective assessment of delay even though it would remain, despite best endeavours, to be as accurate as possible in any forecasts used, theoretical in nature given that the eventual actual delay caused by the event is not assessed given that the subsequent progress of the works would not be considered. It was however further added in this same judgement that “…some form of retrospective analysis is required” in relation to the facts. This requirement that a retrospective approach was required in this case would appear to follow the established principles as to the assessment of damages for breach of contract and sits more comfortably within the framework of existing case law which requires that a Contractor must demonstrate, as a matter of fact, that the event complained of and relied upon actually caused a delay to the completion date. A proper retrospective approach satisfies this requirement given that it should be based on fact and take into account what actually happened after the delay event occurred. Accordingly a retrospective review of the facts would take account any subsequent measures taken by the Contractor to mitigate delay by way of re-sequencing, resource reallocation or acceleration. This position also lends itself to the reality of many time related disputes in that applications and decisions in relation to delays are often