Factual Disagreements in Construction Delay Disputes: Identification, Evaluation and Testing of the Justifications for Difference in Opinion

Construction delay claims are a leading cause for disputes in the sector. There are two primary aspects to such disagreements: legal and factual. The focus of this paper is the latter. It identifies, evaluates and ranks the factors that impact the analysis of evidence concerning construction delays. The research method is two-fold, involving content analysis of twenty case studies, that identifies the reasons for difference in expert opinion (or factors), and testing of these findings in a survey questionnaire designed to examine the impact and comprehensiveness of those factors. This method provides a more rigorous assessment than previous studies and therefore a more precise list of variables. It is concluded that the factors can be grouped into two categories: (i) materials and documents and (ii) matters of interpretation. Although both categories are important, the deficiencies in the former are often exploited by the parties and/or legal professionals to generate conflicting results in terms of extension of time entitlements. Incorrect, incomplete, undisclosed and/or unagreed records and procedures are used to generate ambiguity and create opportunities to perpetuate claims and disagreements. The work presented here provides additional support to the proposition that opportunistic behaviour is at the core of factual delay disputes and further evidence that tailored contractual delay protocols such as delay analysis clauses can be an effective aspect of a broader solution.