themselves delayed meaning that a retrospective approach tends to be applied, taking account of the factual position as it evolves and plays out. So which approach should you use? In order to provide a relevant and credible delay analysis in support of an application for an extension of time, it is crucial that the most appropriate approach to delay analysis is adopted. Whilst the circumstances in which the law might prefer a prospective approach over a retrospective approach appear somewhat unsettled following the Court’s mixed guidance in this judgement, a number of factors influence the selection of approach including most significantly, the requirements of the contract and any established principles for assessing delay. 1. Adhere to the contract requirements The contractual provisions dealing with extensions of time are central in determining the correct approach used to demonstrate an entitlement to an extension of time, be that either contemporaneously or retrospectively after the event. The JCT Standard Form of Building Contract and the Infrastructure Conditions of Contract provides for an extension of time to be assessed during the currency of the works which would suggest that it would lend itself towards assessment of delay on a prospective basis although this would not preclude the use of a retrospective approach to assess actual delays incurred, following timely notification, as the works progress. However, in addition to this, there is also the opportunity under these forms for a final retrospective assessment of any further extension of time which may be due after the works have been completed. In doing so there is the ability to provide additional relief where the original assessment and award underestimated the delays incurred (although there is no opportunity to reduce any
previously awarded extension of time). It would appear therefore that there would be some flexibility in the use of a delay analysis approach under both these standard forms of contract. The NEC form of contract contains language which appears however to be far more prescriptive in terms of the approach to delay analysis which is to be adopted. It calls for a prospective approach in the analysis of delays and requires assessment of the contractor’s applications on a prospective or forecasted basis, at the time the relevant compensation event occurs. This fits in with the ethos of this suite of contracts which revolves around the employer, project manager and contractor working together to facilitate the smooth running of the project and to avoid disputes at the end of a project by having the machinery available to deal with issues during delivery. Notwithstanding this, last year in the Northern Ireland High Court decision relating to NIHE v Healthly Buildings (Ireland) Limited [2017]4 , it was decided that 5 despite the prospective wording of the contract, a retrospective approach to assessing delay was permissible, in line with the general approach to assessment of damages, given that the parties had failed to follow the prescribed approach.