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Page 81 of AACE Recommended Practice 29r-03 "Forensic Schedule Analysis" reads: 2. Cause of Delay vs. Effect of Delay[last paragraph]The best practice that incorporates the best features of both theories is to use the cause theory where discrete delay events exist and to use the effect theory where there are no discrete events that led to the delay. But note that in many cases the identification of discrete causes is a function of diligence in factual research, which is in turn dictated by time and budget allowed for the analysis. I am wondering, what is to be understood as "Discrete event"? How do I identify it? Saludos,Carlos Arana.
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Hi Mike,
Doyle v Laing was of course a Scottish case but it was referred to and given more formal English approval in London Underground v City Link in 2007. There may be others later than this - not sure off the top of my head.
That said, even though global claims appear more acceptable from these cases, success is still the exception rather than the rule.
In London underground it was made clear that success was really only to be considered "provided that sufficient convincing evidence is presented in respect of individual elements of a claim, those individual elements may succeed and a claimant may recover some of the losses it has claimed even though the claim does not succeed in its entirety".
In any case, this is not a licence to submit lazy global claims - it is still necessary for the claimant to show that it is not practicable to show the discreet effects. Moreover any events which are not the employer's risk have to be properly extracted.
As always, it depends on the circumstances of course
Regards
Ken
Hi Ken
What about Doyle v Laing?
Best regards
Mike Testro
"Discreet" is the opposite of "aggregate".
Delay claims often attempt to desribe a number of delay events and then suggest that the effect of all those events together (i.e the aggregate effect) proves entitlement to the EOT sought.
The problem with this is that it ends up being a global claim. This is contrary to common law. If you say that events A, B, C, and D together caused a delay but you can't say which one caused what amount of delay, I would say that I cannot actually determine what the charge being made against me is. What did I do which entitles you to the EOT you claim? If you can't tell me by separating the causes and effects, there is no case. That's why global claims have to fail.
JCT 05 and other contracts are clear on this but it is subtle. Clause 2.27.2 (Notice by Contractor of delay) refers to in respect of each event identifed in the notice, the contractor shall......give particulars of its expected effects....
It is necessary to isolate each event and to attribute the effect to each one separately.
This is known as the discreet effect of the event as opposed to the aggregate of all the events put together.
Regards
Ken Sadler
Hi Carlos
In this sense Discrete is opposite to Concrete.
Concrete is an amalgum - a mixture where - Discrete is a standalone item.
Best regards
Mike Testro
Posts should be editable, where did all my <enter> go? Here's it again hoping that it reads adequately:
Page 81 of AACE Recommended Practice 29r-03 "Forensic Schedule Analysis" reads:
2. Cause of Delay vs. Effect of Delay
[last paragraph]
The best practice that incorporates the best features of both theories is to use the cause theory where discrete delay events exist and to use the effect theory where there are no discrete events that led to the delay. But note that in many cases the identification of discrete causes is a function of diligence in factual research, which is in turn dictated by time and budget allowed for the analysis.
I am wondering, what is to be understood as "Discrete event"? How do I identify it? Saludos,Carlos Arana.
Email: PPadmin@planningplanet.com
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