Issue 15 | March 2018

FOUR DECADES OF
CONSTRUCTION,
CONSULTING AND
CONTRACTS
 Issue 15 | March 2018

Welcome to the Driver Trett Digest

The 15th issue of the Driver Trett Digest FIDIC forms of contract, next steps for
celebrates that 2018 will mark 40 years adjudication in Canada, Paris’s role as an
since our business started in 1978, in international arbitration hub, and various
Northampton, England. Pages 20-21 track viewpoints and contributions regarding
our history through to a business which the management of disputes, their solu- 17
today operates from 28 offices around the tions and resolution. Finally, in keeping
world, in 32 different languages. Two things with our anniversary theme, there is even
immediately come to mind; firstly, what a technical expert’s view on the wonderful 4
would those who started the firm think world of festival tents!
about its development into a global brand, It’s something of a cliché to talk about 20
and secondly, perhaps more importantly, being ‘a people business’, but in the case
where will the next 40 years take us? of Driver Group this is completely true, the
This issue includes some additional business starts and ends with our people.
insight into our global teams with a variety I would like to say a big thank you to all
of interviews featuring our regional direc- of those staff, past and present, who have
tors, their views of the past and thoughts contributed to our business over the last 11 30
for the future. The team also look to the 40 years. The technical content in this
future in a selection of articles that turn issue finishes, appropriately, on page 40 CONTENTS
attention to the need to develop and - but 40 is of course not the end, but the ■ The downfall of being an optimist P2
nurture a diverse, next generation as our beginning of the next chapter. ■ Is it time to call in the experts? P4
industry moves forward. I hope you enjoy this special edition of
■ Q&A: Back in APAC P6
For those regular readers of our Digest, the Driver Trett Digest.
you will find the usual high-quality mix ■ The future rules...on NEC4 P7
of articles and analysis, commenting on Mark Wheeler ■ Longest path and elevated bike paths P9
hot topics including the new NEC4 and Global Chief Operating Officer ■ Q&A: Canada P10
■ The evolution of the festival tent P11
■ The Minerva effect P14
■ A jam-packed judgment P15
■ Emphasising the importance of recognition P17
■ Q&A: Mainland Europe P19
■ 40 years of Driver Trett P20
■ Somewhere over the rainbow P22
■ A grey haired view P24
■ Q&A: The Middle East P26
■ Feeling constrained by budget? P27
■ Q&A: Switching lanes P29
■ Adjudication begins in Canada P30
■ Q&A: A decade in Oman P32
■ Where are the women? P33
■ A reasonable settlement? P35
■ Is Paris the home of international arbitration? P37
■ Q&A: Driver Trett UK P38
■ The Power of 17, 19 and 25 P39

1
 Given that I am a planner, who takes
instructions as an expert witness, I will
concentrate on the second bullet point.
The Green Book says:
1. Estimate the time taken to complete the
works.
2. Apply adjustments to these estimates,
based on the best empirical evidence
relevant to the stage of the appraisal.
3. S ubsequently, reduce these adjust-
ments according to the extent of confi-
dence in the works duration estimates,
the extent of management of generic
risks, and the extent of work under-
taken to identify and mitigate project
specific risks.
4. The estimates of works’ duration, and
the adjustments for optimism, should
ideally be reviewed independently.

Delay experts are often instructed to

review programmes and to provide
an opinion as to whether the original

The downfall of
(or baseline) programme/timescale
is reasonable or not. More often than
not this instruction is received after the
project in question has suffered delay and

being an optimist
late completion. Such an analysis should
be done before the project commences
and at key stages throughout the project.
The latest statistics show that in 2016,
55% of projects reviewed for the survey
were completed within (or bettered) the
planned out-turn time. The trend over
Misplaced optimism, it seems, is not Further, that the challenges of delivering the past ten years as shown in Fig. 1 (P3).
DAVID WILEMAN – DIALES DELAY limited to me and my seasonal purchases the projects are, “compounded by the This leaves 45% which ultimately took
EXPERT ADDRESSES THE RISKS OF but rather to the construction industry endemic over-optimism which character- longer than planned. As shown in Fig. 1,
BEING AN OPTIMIST, ESPECIALLY
as a whole. A quick Google of the word ises decisions to commit to projects and within the construction industry there is
WHEN IT LEADS TO SPENDING MORE
‘optimism’ provides the definition, “hope- the subsequent management of them.” (and has been for many years) a system-
THAN ORIGINALLY PLANNED.
fulness and confidence about the future This report follows The Green Book atic tendency to be over-optimistic about
or the success of something”. (2003), Appraisal and Evaluation in how quickly projects can be delivered.
Optimism is prevalent in the construc- Central Government prepared on behalf The question that keeps resounding
I was sitting at my desk on 22 December tion industry, to the extent that the of HM Treasury. Annex 4, Risk and around the construction and engineering
2017 thinking, “there’s lots of shopping National Audit Office prepared a report Uncertainty, includes a section entitled industries year-on-year is, “How do we
days left until Christmas…”. Quite frankly, (issued in December 2013) entitled Over- Optimism Bias which helps to explain prevent optimism bias?”.
once again I was kidding myself and optimism in government projects. The why engineers, and the construction The answer is not complicated and is
it looked as though my good lady wife foreword advises that: “This report looks industry in general, seems to suffer from the same question posed to delay experts
would be getting the same as last year. A at a particularly persistent risk manage- its optimistic point of view. The headline after the event. That question being,
last minute panic buy. The problem with ment problem – the difficulties caused point of Annex 4 describes optimism bias “whether the programme/timescale is
a panic buy, of course, is that they are for government projects by unrealistic and the systematic tendency to be over- reasonable or not?”. The only difference
always expensive. Always! expectations and over-optimism.” optimistic about key project parameters is the timing of the question.
How did this happen again? How did I The report sets out that there are many in relation to: The Green Book suggests that optimism
lull myself into thinking I had lots of time reasons why projects fail to meet expec- l Capital costs. bias can be minimised as follows:
and how does that lack of time always end tations, such as poor project manage- l Works duration. l Project managers, suitably competent
up costing me more? ment and the impact of external factors l Operating costs. and experienced for the role, should
My problem is that I am an optimist. beyond the control of those responsible. l Under delivery of benefits. be identified.

2
l Project sponsor roles should be clearly Within the supplementary note, the Optimism Bias (%)1
defined. following good practice stage reviews of TABLE 1 Works Duration Capital Expenditure
l Recognised project management struc- the project to be developed are advised PROJECT TYPE
tures should be in place. (with respect to planned programme Upper Lower Upper Lower
l Performance management systems durations): Standard Buildings 4 1 24 2
should be set up. Step 1: Decide which project type (from Non-standard Buildings 39 2 51 4
l For large or complex projects: Table 1) to use in order to ensure the level Standard Civil Engineering 20 1 44 3
l Simpler alternatives should be of risk pertaining to the most appropriate
Non-standard Civil Engineering 25 3 66 6
developed wherever possible. project type is utilised.
l Consideration should be given to Step 2: Always start with the upper band Equipment/Development 54 10 200 10
breaking down large, ambitious to provide a less optimistic assessment. Outsourcing N/A N/A 41* 0*
projects into smaller ones with more Step 3: Consider whether the optimism * The optimism bias for outsourcing projects is measured for operating expenditure
easily defined and achievable goals. bias factor can be reduced by assessing 1
Note that these values are indicative starting values for calculating optimism bias levels in current projects. The upper
bound (U) does not represent the highest possible values for optimism bias that can result and the lower bound (L)
l Knowledge transfer processes the upper band percentage against
does not represent the lowest possible values that can be achieved for optimism bias.
should be set up, so that changes in how contributory factors to delay can be
individual personnel do not disrupt managed. and requirements for equipment/ that the works to complete a project are
the smooth implementation of a Step 4: Apply the optimism bias factor to plant/materials embedded within the never simple. By removing the optimism
project. the planned contract duration. programme activities. bias from a project, the preceding works
Step 5: Review the optimism bias adjust- 3. Ensure that the programme is robustly are started earlier by necessity, thereby
Minimising optimism bias is expanded ment. logically linked. reducing the strain on the back-end of the
upon with the Supplementary Green These recommendations, if followed, 4. Ensure that the critical and near critical project timescale.
Book Guidance prepared from advice would at least provide a framework for paths are reasonable and that no activi- Therefore, in order to prepare a
provided by Mott MacDonald (2002) in the programme to be assessed. Such a ties have excessive float. programme which is capable of being
Review of Large Public Procurement in framework is beneficial when reviewing Only after (and not before) points one achieved and eradicating over optimism,
the UK. The objectives of this supple- programmes at high-level but has limited to four have been satisfied, then the I would recommend:
ment are to ensure that companies: applications when assessing more progress of removing optimism bias l Prepare a logically linked, fully
l Make adjustments to their estimates detailed programmes prepared at the should be addressed. The importance resourced, robust programme.
of capital and operating costs, benefits tender stage, prior to commencement of ensuring a robust logically linked l Have the programme checked by a
values and time profiles. of the works or shortly prior to award of programme is in place, before optimism third party who is experienced in such
l Provide a better estimate of the likely contract. bias is assessed, being of primary impor- work.
capital costs and works’ duration. In order to provide a robust programme tance because such programme reviews l Ensure that the programme reflects the
for the works, prior to mobilisation, I provide little benefit if they are imposed estimate and availability of resources
The guidance recommends that adjust- would suggest that the following process on a deficient programme. (manpower/equipment/plant/materials).
ments are made to activity/project dura- should be followed, expanding on the Factors can then be applied to the l Undertake workshops to review for
tions based on data from past and similar recommendations above: programme based on project type, prior optimism bias relating to:
projects, as adjusted for the unique 1. Ensure a robust estimate for the works experience, and the perceived expected l The baseline programme/work type.
characteristics of the project in question. has been prepared and that this esti- management of risk factors. Further, l Previous experience of similar
By way of example, Table 1 within the mate does not suffer from similar opti- such analyses do not need to relate to projects/clients.
supplementary paper provides adjust- mism bias. the entire project, as risk factors can be l The possibility of growth.
ment percentages to be used to counter 2. Review the programme to ensure that applied to a programme to deal with l The local workforce capacity.
optimism bias (to be used in the absence the estimate is accurately reflected other issues which are often the subject l Individual subcontractor perfor-
of more robust evidence) as follows: by manhour/manpower allocation of over optimistic thinking, such as: mance.
l Growth expectancy. l Key deliverables.

FIG.1 - 2016 GLENIGAN REPORT “UK INDUSTRY l Individual subcontractor performance. l Weather factors.
PERFORMANCE REPORT” l Weather factors. l The completion and close-out phase
65% l Completion and close-out phase of the of the project.
62% 60% 59% 60%
58% 57% 57% 55% project.
48% By accepting that programmes and plan-
42% Addressing the potential for problems ners are optimistic, we can readdress
and optimism bias before the project the balance by taking just a little time to
timescale is set will ultimately bring ensure that the next project will not fall
benefit to the out-turn duration of the foul of optimism bias.
works. Many readers will recognise the Of course the other downfall of being
old adage that the last 10% takes 90% of an optimist, is that you always end up
2005 2006 2007 2008 2009 2010 2011 2012 2013/ 2015 2016 the time. Whilst this phrase in itself is an paying way too much for your wife’s
2014
over-estimate, it does accurately reflect Christmas present. n

3
Is it time to call
The use of alternative forms of dispute
resolution (ADR) is becoming an increas-
ingly attractive option in the United Arab
Emirates (UAE) due to cost of formal

in the experts?
dispute resolution processes, such as
arbitration and litigation.
One method of ADR available is that
of expert determination, but does this
option provide a suitable means of
resolving a dispute? And, why should
parties consider this against the other
CRAIG SANDISON - ASSOCIATE DIRECTOR, DRIVER TRETT DUBAI OUTLINES THE PROCESS OF EXPERT DETERMINATION,
alternative resolution methods? In
ITS BENEFITS AND THE INCREASING ATTRACTION FOR USING THIS METHOD IN THE UNITED ARAB EMIRATES.
answering these questions, the process
needs to be explained and examined,
with consideration of the relative merits
and de-merits of appointing an expert to
determine the dispute.

4
What is expert determination?
Expert determination can be defined as USING EXPERT DETERMINATION CLAUSES AND THE EXPERT
the process of dispute determination by AGREEMENTS DETERMINATION
an individual, independent third-party, The parties may choose to insert a clause within the contract conditions as a dispute PROCEDURE
who possess particular expertise relative resolution clause. If such clause does not exist, the parties have the option to form Comparative to arbitration or liti-
to the dispute. an ad-hoc agreement for expert determination, once the dispute arises. gation, expert determination is
Institutions, such as the Academy of Experts or the Chartered Institute of Arbitra- much less formal. The procedure
What are the benefits of expert tors, are able to provide model clauses for expert determination. can operate with greater flexibility.
determination? In the drafting of an expert determination clause, the following matters are Procedural requirements will be set
There are numerous benefits associ- recommended for inclusion: out within the applicable contract
ated with opting for expert determina- clause or, in the absence of such a
tion, these can be summarised briefly as l Procedures for referral to expert determination. clause, the ad-hoc agreement.
follows: l Procedures for appointment of an expert determiner and, if required, replace- The procedure would usually
l Privacy and confidentiality - The ment of the expert. require an initial meeting.
only parties that will be privy to the l Procedures for disclosure of conflict or any other matter that may affect impar- Depending on the requirements
process and the decision of the expert tiality of the expert. of the expert determination agree-
are those that are involved with the l Requirements for confidentiality. ment, this can either be undertaken
dispute, and naturally the expert deter- l Roles and powers of the expert. in person or by teleconference.
miner. l Obligations of the disputing parties in connection with the procedure. After this meeting, depending
l Freedom to choose - The parties l Requirements for meetings. on the requirement of the clause or
have flexibility in their ability to freely l Requirements for the determination of the expert, such as the decision to be in ad-hoc agreement, the parties will
select the appropriate expert and also writing and shall be final and binding. submit the evidence and submis-
choose the rules, proceedings, and the l Parties liability for costs. sions to timetables set out or agreed
effect of the expert’s determination. l Procedure for referring or disputing the determination. with the expert. If required, the
l Impartiality - The expert should expert may set further directions to
possess a duty to act independently NB: In some jurisdictions, such as the UK, such a clause will need to account for the parties for further submissions
and fairly throughout the whole local statutory arrangements such as adjudication to ensure validity. or additional evidence. Following
process. the submissions and provision of
l Speed - A dispute may be resolved evidence, the expert will determine
quickly, although the nature of the the dispute between the parties,
dispute will have significant impact on SELECTION AND APPOINTMENT OF THE EXPERT and provide their decision in writing
this factor. The parties can agree upon the selection of any individual considered suitable to be to each of the parties.
l Lower cost - The less formal nature of the expert determiner. However, the parties’ freedom of choice can be limited by
expert determination should result in a the provisions contained within the expert determination clause or ad-hoc agree-
more cost-effective resolution process. ment. This may stipulate that the expert determiner must be associated with a fore, other means, such as mediation and
l Technical expertise - The appointed specified professional body, such as the Royal Institution of Chartered Surveyors or adjudication, could face similar interpreta-
expert determiner will be likely to have the Chartered Institute of Arbitrators. tion by the court.
greater expertise on the subject than The parties must apply caution when selecting the expert determiner to ensure If the parties still choose to select expert
an arbitrator or court judge. that the process is successful, provides a fair determination, and prevents the unsuc- determination as a means of ADR, even if
cessful party protesting the expert’s determination on the basis of a procedural fault. the expert’s decision is ruled unenforceable
Expert determination is suited to disputes It should be of foremost consideration that the expert possesses suitable experi- by the courts, the expert’s decision would
and matters which concern detailed tech- ence related to the field of the disputed matters. It would also be recommended still hold significant weight if the matter
nical issues, and sometimes where the (although not imperative) that the selected expert has a reasonable track record of were referred to arbitration or litigation.
parties require a swift and quick resolu- performing expert determination appointments. In summary, expert determination is a
tion on a disputed matter. viable and credible method of ADR. The
However, it must be remembered that greatest appeal of this is that an expert,
expert determination is not always suit- supported by the courts. Considered as parties had agreed the expert determina- with suitable technical knowledge of the
able, as: a recognised method of ADR, the courts tion shall be final and binding, it cannot disputed matter, will be undertaking and
l The procedure lacks formality. are reluctant to overrule a binding expert have the effect of binding the parties and determining the dispute, with the added
l It is not subject to rules of evidence. determination, unless the process has can only be considered a technical assess- benefits of expert determination being a
l There is an absence of cross-examination. been subject to serious procedural fault, ment or opinion of the matter. flexible, speedy, and reliable means of
fraud, or bias. Despite the ruling, expert determina- dispute resolution. However, for parties in
Enforcement of the Determination In the UAE, the enforcement of expert tion should not be dismissed as a means dispute, the primary advantage of expert
Under legal jurisdictions such as Australia determination was examined by the Court of ADR resolution in the UAE. At present, determination could be the avoidance of
and the United Kingdom, the enforce- of Cassation in 2014. In the judgment the UAE laws do not provide a legal basis a lengthy and costly resolution in either
ment of expert determination is strongly the court decided that, even though the for any of the other ADR methods. There- arbitration or litigation. n

5
 Q&A: Back in APAC
JOHN BRELLS - MANAGING DIRECTOR, DRIVER TRETT ASIA PACIFIC TALKS TO THE DIGEST ABOUT THE FUTURE FOR DRIVER TRETT ACROSS THE REGION.

Is it good to be back in Asia structure, and commercial development

Pacific (APAC)? clients not only in Singapore, but across
In a previous life, I had spent four years the globe.
working in Asia and loved every minute
of it! Having recently joined the global Are there any further improve-
management team of Driver Trett as ments to be made this year?
managing director of APAC, I can honestly As with any organisation there are always
say it’s good to be back after a six-year ways to improve. We are currently in
focus on the natural resources boom in the process of implementing APAC wide
Australia. I am based in Perth, Australia; a use of an eDiscovery system to assist
good central stepping stone to the overall with analysis of ‘big data’. On most of
Australasia territory with great connec- our commissions, especially the liqui-
tions to the wider region. fied natural gas (LNG) and oil and gas
projects, we are deluged with massive
What does the current APAC busi- amounts of data that we have to get our
ness look like? arms around in a short period of time.
Our APAC team has shifted in structure Having an electronic system to assist us
and approach to market changes over in organising this data makes us time
the past couple of years, with the regions’ and quality efficient, at a significant cost
recent growth primarily being driven by saving to our clients.
our Diales (Driver international arbitra- In addition to my previous answer, our
tion litigation expert support) delay, two key focus points this year will be in
quantum, and technical expert witness externalising our Diales expert witness
capabilities. offering across the APAC region and
We are currently operating out of four developing our next generation of expert
country bases; Australia, Hong Kong, John Brells - Managing Director, Asia Pacific witnesses. Initially, this will focus on
Malaysia, and Singapore with 67 staff three team members who we will mentor
spread between six regional offices. and other regional offices, resulting in towards, and assist in gaining, their first
Driver Trett in APAC grew this year,
with the Australia team now operating
continued utilisation throughout the year.
Having inherited a small, but seri-
Having an electronic expert appointment.

out of Sydney, Brisbane, and Perth ously talented team of delay, quantum, system to assist What shape would you like the
providing planning, dispute resolution,
and expert witness delay and quantum
and contracts specialists in Hong Kong,
their focus over the next year will be on us in organising APAC business to take in future
years?
services. Perth had been a virtual office
until this year and we now have three
delivering quality services and products
from our core strengths that include
this data makes Over the next five years, I would like
APAC to grow in a controlled and focused
additional professionals based there. planning, contract-commercial support, us time and manner, building on our in-house skills
We have an eye on expanding to a fourth
office in Melbourne in 2018 and are
and dispute advisory services. This team
provides expert witness assistance to our quality efficient, and adjusting to market requirements.
We will achieve success and continued
currently searching for an exceptional
leader to develop our offering there.
Diales experts, spread across APAC and
Driver Trett’s other global offices.
at a significant growth through wise and well placed
acquisitions of talent and key experts in
The Malaysian team has grown this Our Singapore team is the crown jewel cost saving to our the region. These will enhance our skills
last year because of the management’s
target on a more APAC regional focus.
of the APAC region, with a diverse team
of over 34 professionals strictly special- clients. and knowledge in the areas where we
see the need to expand.
Not only has the team been able to ising in supporting six Singapore based Needless to say, I am excited about
extend existing commissions, but they Diales testifying experts. We are deliv- APAC’s future prospects and growth
are also winning work on commissions ering expert witness services in delay, potential that will enhance our ability to
outside of Malaysia. They provide expert quantum, and technical engineering for deliver quality services all the time, every
witness assistance to our Singapore office our oil and gas, roads, transport, infra- time, everywhere. n

6
The future rules…
on NEC4
MICHAEL FOSTER – DIRECTOR, DRIVER TRETT UK EXPLAINS FOUR KEY AREAS OF CHANGE, AFFECTING QUANTITY SURVEYORS, IN THE APPLICATION OF NEC4

It is rare that change is made to the rules days in Newquay - if the wave was ahead stage, will have a direct impact on profit- contractor under-priced a JCT job, then it
of evaluation that govern change. Just look of you, you weren’t going far. Lots has been ability because the site QS will be applying lived and died by those unit rates and prices
at JCT and how often it tinkers with the written, and said in seminars, on the topic those decisions at some point in the near when pricing change, because a tender
valuation fences. You know what I mean, of NEC4 during recent months running future. insufficiency would magnify into a greater
bill rates, adjusted rates, fair rates and through the detail, clause by clause. This The ethos behind NEC is that the loss when used to price a variation.
daywork. Those rules have remained static is all very useful but, like most things in the contractor should not be out of pocket if NEC attempted to avoid the valuation
since the day I put a tie on and became life of a QS (including valuation rules) I have events arise post contract award that are disputes that arose under JCT evaluation
a quantity surveyor (QS). Now look at had to do the graft and work it out myself. outside of its control. The contractor should rules by developing its Defined Cost plus
the NEC, its rules have evolved over four In surf speak, I am now ahead of the wave. be no better or worse off than had the event Fee concept. NEC has a greater level of
generations and development has been When it comes to valuing compensa- not occurred. NEC invented the Defined fairness built into its core, and those rules
driven by both industry and end users. The tion events (CEs), the recent step change Cost plus Fee mechanism for evaluating have worked well over the years, but they
end user that I focus on is the QS, and that is significant. Tendering departments must change, which was in opposition to the did include some inherent practical difficul-
includes me. ensure that they are ahead of the wave, or principles under JCT, where the heart of ties that caused disputes. NEC has clearly
When it comes to NEC you have to be at least on top of it during this transitional its valuation rules lie in the unit rates and listened to industry and the result is simplifi-
ahead of the wave. I refer back to my surfing period. Decisions made now, at tender prices used to price the whole project. If a cation. Key changes are shown in Boxes 1-4. ➔

7
 BOX 1 - DEFINING DEFINED COST – EVALUATING COMPENSATION EVENTS BOX 3 - THE SHORT SCHEDULE OF COST COMPONENTS UNDER OPTION A&B

Under NEC3, Defined Cost has a unique definition depending on the Main Putting aside the minor change in title, the first noticeable change is an increase
Option Clause selected, with one area of divergence between the options being in length as it is devised to capture more cost than the previous edition. The
the approach to pricing subcontractors. The changes made in NEC4, in pursuit of second change results from the deletion of several add-on percentages that were
simplification, are pointed: embedded in the schedule.
It was the application of numerous percentages that generated complication. There
Option NEC3 NEC4 were in fact several other fees to be applied before applying the subcontracted fee and
A&B “Defined Cost is the cost of the “Defined Cost is the cost direct fee, including the people overhead percentage and design overhead percentage.
components in the Shorter Schedule of the components in the NEC4 has been successful in eliminating unnecessary complication by deleting the
of Cost Components whether work is Short Schedule of Cost add-on percentages. From an estimator’s perspective, this is a good thing as only one
subcontracted or not...” Components” percentage requires pre-price at tender stage: the fee. It is also much simpler for the
on-site QS, who now uses one percentage rather than several applied to different
C&D “Defined Cost is the amount of “Defined Cost is the cost parts of the evaluation.
payments due to Subcontractors…” and of the components in the The Short Schedule is longer because expenditure previously captured by the
“the cost of components in the Schedule Schedule of Cost Compo- pre-agreed percentage additions must now be captured as cost under each respec-
of Cost Components for other work” nents….” tive cost component. Other broad amendments to the cost components are:
l People - Previously calculated by reference to amounts paid but are now evalu-
Under Option A&B, the QS follows the same route and refers to the Short Schedule ated using pre-agreed hourly rates in the contract data. It is therefore necessary
of Cost Components, irrespective of whether or not the CE includes subcontracted at tender stage for estimators to determine what those hourly rates are and to
elements. The sharp-eyed QS will have noticed we are now using the Short ensure that they capture the overhead percentages that no longer apply.
Schedule, not the Shorter Schedule, but will have also concluded that the new l Subcontractors - A new stand-alone cost component, meaning all subcon-
schedule is longer. In this case, more is less and I expand upon this later on. tractor cost associated with a CE is evaluated using the Short Schedule of Cost
The above change has greater effect under Options C&D. Under NEC3, the Components (Item 4).
contractor previously priced its own in-house resource using the Schedule of Cost l Charges - Evolved into a longer list to compensate for the removal of the people
Components but would separately evaluate the subcontracted element based overhead percentage. The QS now separately identifies and prices in the CE
upon payments due to its subcontractors. There were two separate parts to the quotation around a dozen additional heads of cost.
evaluation. However, in the new NEC4, the distinction between subcontractor and l Manufacture and fabrication - Previously assessed by calculating amounts paid
contractor resource has disappeared from the definition of Defined Cost. but now assessed by reference to pre-agreed hourly rates included in the contract data.
When valuing CEs the rule is simple: Under Option A&B, go to the Short Schedule l Design - Still assessed by reference to hourly rates stated in the contract data.
of Cost Components and when on Option C&D, go to the Schedule of Cost Compo- However, the percentage addition no longer applies meaning that the pre-agreed
nents. There is now no divergence on subcontractors as they are now included in hourly rates must be increased to compensate for the loss of the percentage addition.
both schedules, at Item 4.
Overall, the changes pretty much reflect what industry wants. Pre-agreed hourly
rates are nothing new and the elimination of unnecessarily complicated multiple
percentages should also avoid some valuation arguments.
BOX 2 - APPLICATION OF FEES

The old and new provisions are as follows:

BOX 4 - THE SCHEDULE OF COST COMPONENTS UNDER OPTION C&D
NEC3 “The Fee is the sum of the amounts calculated by applying the The full schedule has also been redrafted, but the change is different. A summary
subcontracted fee percentage to the Defined Cost of subcontracted of the main points is as follows:
work and the direct fee percentage of the Defined Cost of other l People - Remains largely unaltered. NEC4 has resisted the switch to pre-agreed
work” hourly rates, which is likely to arise from the need for clients and the project
NEC4 “The Fee is the amount calculated by applying the fee percentage to manager (PM) wanting to audit actual cost. This is because the Schedule of Cost
the amount of Defined Cost” Components serves a dual role for valuing CEs but also in ascertaining the Price
for Works Done to Date.
l Subcontractors - Also recognised as a new stand-alone cost component,
Under NEC3, the contractor pre-priced two different percentages. One that is
applied to the subcontractor element and a second applied to those resources meaning all subcontractor cost associated with a CE must be recorded.
l Charges - Significantly amended as the Working Area overhead percentage has
provided by the contractor. Those percentages could differ but were quite often
identical, typically reflecting the fact that a contractor did not see the need to differ- been deleted.
l Design - Still assessed by reference to hourly rates stated in the contract data. However,
entiate. NEC4 has conflated them into one fee percentage, leading to less burden
on the QS when preparing quotations and the removal of arguments over fee-on- the percentage addition has been deleted and accordingly the agreed hourly rates must
fee that frequently existed. be increased to compensate for the deletion of the percentage addition.

The Future Benefits be around for years to come. However, by ages into one, increasing the use of agreed CE quotation process. That said, I will not be
On the basis that I have just been instructed giving the end user what it wants in the new hourly rates, and including subcontractors getting rid of my NEC3 and users guides, just
on an NEC2 dispute, I am sure NEC3 will NEC4, including conflating several percent- within the schedules should streamline the like I still have those for NEC2. n

8
Longest path and
elevated bike paths
ANDREW AGATHANGELOU – DIALES
DELAY EXPERT EXPLORES THE
VARIOUS PATHS OPEN TO DELAY
ANALYSTS.

In February 2017, China opened the

longest elevated bike path in the world
in a city in South-East China. The five-mile
long, 16-feet wide bicycle-only pathway –
dubbed ‘the winding viaduct’ – has been
built in the city of Xiamen. It takes a very
meandering path between the start and
end points, in order to achieve the status
of the longest elevated bike path in the
world.
In the world of delay analysis, the use
of retrospective techniques, which require
the delay analyst to establish ‘longest
path’ through the works, is becoming very
common. In simple terms, the longest
path can be thought of as the longest chain
of connected construction activities which
determine the overall completion date
of the works. In this respect, the ‘longest
path’ can also be considered to be the crit-
ical path, a term familiar with those who
work in this field. It is generally accepted which activities were completed on the line programme; whether it is correctly
that for an event to cause delay, it must
either lie upon the critical (longest) path,
actual completion date.
The analyst then works backwards to
Some experts logic linked or whether it accurately
reflects the true scope or sequence of the
or directly impact another activity which the actual start date, examining numerous deliberately works. Perhaps this is due to results and
links in the chain of construction activities analysis being overly reliant on an answer
avoid the use
lies upon the critical path.
A common feature of the various tech- occurring between those dates in order to produced by programme software rather
niques used to establish the longest path
through the works retrospectively, after
establish which took the longest. Thereby
ultimately determining the actual comple-
of programme than by a detailed review combined with
common sense and experience.
the works are complete, is the ability to tion date. This ‘longest path’ is often software on Like the elevated bike path in Xiamen,
referred to as the ‘as-built critical path’. it remains to be seen whether manual
the basis it is
establish the path manually, by visual
examination of the as-built programme, This approach is becoming more inspection and establishment of the
as opposed to using programme software.
The longest path between the start and
common with delay analysts. Some
experts deliberately avoid the use of
sometimes seen as ‘longest path’ will catch on or become a
passing fad. For those delay experts who
finish points, on the as-built programme, programme software on the basis it is a ‘dark art’. refuse to use any kind of programme
is established by first examining the sometimes seen as a ‘dark art’. Disputes software, it remains the only method of
actual finish date and then determining involving expert delay evidence are often establishing a critical path of some kind,
which construction activities were directly distracted and undermined by argu- essential to demonstrating that a delay to
connected to the completion date, or ments over the robustness of the base- completion has occurred. n

9
 Q&A: Canada
DEREK SAYERS – ASSOCIATE DIRECTOR, DRIVER TRETT CANADA TALKS TO THE DIGEST ABOUT THE GROWTH OF CONSTRUCTION IN THE COUNTRY AND THE
CHANGING APPROACH TO CONTRACT MANAGEMENT AND CLAIMS.

What does the current Canadian What do you see as the future of
business look like? construction in Canada?
Driver Trett expanded their business Canada is a young, dynamic economy
in Canada, from our Toronto base, in and the future for the construction
January 2016 with the opening of offices industry is robust. With its vast natural
in both Calgary and Vancouver. resources, there is no doubt that Canada
Since opening these new offices, we will continue to grow. The population
have continued to grow. The work across of Canada is small for its size and each
our offices in Canada comes from varied and every year Canada welcomes many
sources; owners, contractors, subcontrac- skilled immigrants. With each new injec-
tors, and law firms. The great news is that, tion of talent the economy continues
in the vast majority of cases, Driver Trett to grow both in size and diversity. It is
have been able to assist their clients to natural for different parts of the economy
reach an economic, mutually acceptable to grow at different rates, and we see the
resolution to their disputes prior to the construction industry responding quickly
point of formal arbitration or litigation. Derek Sayers – Associate Director to evolving trends, providing support at
This has saved our clients substantial time every moment. One such trend has been
and expense in avoiding ongoing litigation. endeavour to avoid litigation and settle offer as interactive discussion sessions. the arrival of more international contrac-
A direct result of our success helping disputes by amicable negotiation. While During these we provide insights on how tors to the Canadian market who may
our clients here in Canada has been highly laudable, one consequence that to best manage record keeping, how have a different, more forceful approach
repeat work from the clients that have we have seen from this mindset is a lack to manage the risks inherent in various to addressing their claims.
engaged our services. Just as importantly, of attention to the giving of timely notices construction projects, and to avoid or Driver Trett is very happy to be a part
due to word of mouth recommendations to protect entitlements and in keeping mitigate disputed situations. These inter- of the Canadian economy, to be here
from our existing clients, we have gained adequate records to enable prompt reso- active sessions are very well received with to assist our clients, to raise awareness
the ability to secure further opportunities lution of disputes. positive feedback. As awareness of them on how best to manage risk and, when
to help new clients avoid lengthy litigation To assist our fellow Canadians in spreads throughout the market, the pres- needed, to directly help our clients
and reach effective, efficient resolution. addressing these factors, Driver Trett have entations are in constant demand, keeping resolve their disputes. n
And, what about the team? a number of free presentations that we our team busy travelling around Canada.
Driver Trett have successfully brought
together high-quality professionals with
a wealth of international experience in
quantum, scheduling, and expert work Canada Adjudication Seminars
and created a formidable team. They are
able to quickly and efficiently analyse all Driver Trett (Canada) Ltd. is taking the
aspects of a dispute, draw out the critical lead in providing training on Prompt
factors, and lead our clients and their Payment and Adjudication to the legal
counterparts on the other side of the and construction communities in
dispute to an effective resolution. Ontario. Our Toronto staff are experi-
Is Canada different to other enced in these matters, having assisted
construction markets? in some of our adjudication cases in the
Given our international experience, we UK. We are currently holding seminars
can see the factors that make the Cana- across the province.
dian market different to other markets If you would like to attend our next
around the world. The primary differ- seminar, please contact
ence we see, is that many international [email protected] for more
markets are more litigious. The Canadian information.
conventional approach is very much to

10
The evolution of the festival tent:
flexibility and freedom but…
potential for failure (Part 1)
The rise in demand for tensile ment of ‘festival culture’ in the 1950s and covered venues also began to replace the
STUART HOLDSWORTH - DIALES structures 60s, cumulating in the arrival of events traditional outdoor stages used at rock
TECHNICAL EXPERT EXPLORES
It is the flexibility, adaptability, and afford- such as Glastonbury in the 1970s. In festivals. Unlike dance artists, rock groups
THE DEVELOPMENT OF TENSILE
ability of tensile structures that makes the 1980s, dance acts also began to use required an audience facing proscenium
STRUCTURES OVER THE PAST
TWENTY FIVE YEARS TO PROVIDE them a desirable option for providing tents to provide weather protection for stage and, coupled with a coincidental
SHELTER FOR EVENTS, AND THE shelter at events, particularly events of a raves (Fig.1). The existing concept of the reduction in size of speaker stacks, this
OPERATION OF THESE STRUCTURES, temporary nature. Over the past twenty- circus tent provided an acceptable venue, ultimately led to the evolution of the
INCLUDING CAUSES OF FAILURES five years, tensile structures have become particularly as the dance acts did not ‘festival tent’.
THAT HAVE OCCURRED AND HOW a standard feature of large gatherings require an audience facing proscenium
SUCH FAILURES CAN BE MITIGATED. requiring covered spaces, and have taken stage. The traditional circus tent was The festival tent
on increasingly substantial and sophis- adapted in size to suit this change of use, These large festival tents (with some
ticated forms. Those older, regular with the scaling-up of the tent being made covering areas of 1.5 to 2 hectares)
attendees of the Glastonbury Festival, possible by the transition from canvas to evolved to fulfil a desire for covered
who can still remember the festival tents a plasticised material for the covering space that included not only staging, but
used prior to the 1990s, and compare tent membrane. The form of these tents eventually also seating. The popularity
those with the tents used today, can more consisted of a circular footprint, with a of these larger tents was underpinned by
readily appreciate this. single central king-pole, and a diameter the cheap and ready alternative that they
The original impetus for these large of up to 44m. offered to the hire of fixed venues.
temporary structures was the develop- This new generation of demountable The availability of new fabric materials, ➔

11
 Courtesy of A&J Big Tops Ltd Courtesy of Kayam.co.uk

Fig. 1 - A modern circus tent, the central ‘cupola’ structure supports aerial performance above the ‘ring’ Fig. 2 - Kayam tent with ‘lifted catenaries’ at the right-hand side

Courtesy of Kayam.co.uk Courtesy of mobilestructures.co.uk

Fig. 3 - Kayam tent in a triangular layout that allows a proscenium stage for rock music. Fig. 4 - MT66 series ‘palisade’ tent, note that the three in-line ‘king-poles’ precludes using this
structure for anything other than dance/rave events

which were waterproof, retained strength, upon the work of pioneers of tensile struc- A further development of the large tent Safety considerations
could be folded without damage, and tures, particularly Frei Otto. Structurally, system, the MT66 series, (Fig.4) followed Whilst the benefits of adopting large
could be fabricated simply, allowed new the Kayam features some novel charac- on from the original Kayam series, tensile structures to provide shelter at
forms of tented structures to be created. teristics, which makes the tent extremely removing the catenary edges that project events are readily apparent, the success
The Kayam series of festival tents, which flexible. The Kayam tent can, for example, beyond the side walls of Kayam tents of these structures can only be made
were developed in the 1990s and are still be erected without prior installation of altogether, thereby allowing a larger struc- possible by a consideration of how they
in use today, utilised these innovations all of the side-poles, which allows easy ture to be placed in a more constricted can be safely erected, operated, and
and were the first forms of festival tents to access for the interior fit-out. This feature area. This change replicated the more dismantled. Important breakthroughs,
have a different form of construction from has resulted from the use of a catenary traditional palisaded side pole anchorage such as improvements in the accuracy of
previous concepts. (scalloped) edge with discrete anchorage systems used for the Big Top circus tents, weather forecasting, have assisted with
The Kayam is large enough to hold a stage points (Fig.2). Openings of 15m width or and hence is known as a ‘palisade tent’. this.
and allows theatre lighting rigs or other greater can be achieved around the whole The tent form relies upon side poles to The design wind speed (the maximum
paraphernalia to be supported. It has of the tent perimeter. Also, the number pull the fabric of the structure into shape. wind speed that a structure is designed to
several essential features that remain and arrangement of the Kayam tent masts The flexibility provided by these new withstand) is a critical consideration when
common to all tents of this type: are variable, allowing flexibility in the size tent types, combined with the innovations evaluating the anticipated performance of
l The structure can be transported using of the structure for different events and that allowed them to take on increasingly the structure, as the predominant risk of
standard flatbed lorries. locations. substantial and sophisticated forms, also failure for tensile structures is that they
l It is quick to erect and dismantle (with A variant of the Kayam tent features led to the extension of the traditional April will be pulled out of the ground by gusts
no cranes being required). lifted catenaries (Fig.3), which allows the to September hire season. Around the of wind.
l It is portable enough to be handled audience to stand outside the tent and millennium, tensile structures became The initial design of the Kayam tent
using simple construction equipment look-in. By cutting back the catenary ends, increasingly popular for winter events, was designed for use on sites with wind
such as fork lifts and telehandlers. and lifting these clear of the ground, the such as ice shows and circus acts, oper- speeds of up to 35m/s, which was consid-
overall height of the entry points can be ated by Feld Entertainment, Barnum & ered to be the minimum magnitude likely
The Kayam geometry and form is based considerably increased. Bailey Circus, and Disney on Ice. to be acceptable for the structure to be

12
 FIG. 5 - WIND MAPS

used widely throughout the UK. As with Using the principles expounded within More recently, since the extension of edge of the sites. In the event of high fore-
all innovation, these early festival tents the IStructE publication, ‘Temporary the traditional hire season around the casted winds, the tents are taken out of use
soon attracted attention and copies were Demountable Structures’, as a basis for millennium (which removed the safeguard and various safeguarding measures, such
made. A significant production source of evaluating the suitability of a site on which of traditional circuses and funfairs retiring as double staking, are taken to protect the
these copies were the continental circus to place a large tent, it can be seen that to winter quarters that prevented exposure structure. However, in reality failures do
tent manufacturers; artisans working the design wind speed of the structure of the tents to the worst of the winter’s happen, and injuries have resulted from
in traditional ways, whilst adapting the will dictate which regions of the UK are weather), higher design wind speeds have some of these failures. Fortunately, most
tents to suit the new plasticised materials suitable locations for erecting the tent. To been adopted to allow the tents to be more have occurred when the tent has been
and structural forms. For the most part, illustrate this, I have mapped out the suit- widely used during these winter months. taken out of use, or during the build-up or
continental designers resorted to designs ability of UK locations (Fig.5) both summer The Tensile 1 (now Valhalla) tent, has for breakdown phases, and, to date, a festival
based upon the principles used for and winter seasons, for tents designed example, been designed to a wind speed tent failure has not resulted in a serious
frame and small circus tents, rather than for both 35m/s (the wind speed used as of 50m/s, which has also allowed it to be disaster whilst in public use. The risk of
the methods used for tensile structures a basis for the design of the Kayam) and used internationally. failure should nevertheless be mitigated
developed from the work of Barnes in the for 28 m/s (the standard wind speed used Despite the guidance given within the as far as possible, to prevent any injuries
UK, and Otto in Germany. The adoption for the design of frame tents). It is clear IStructE publication, in reality few of the or damage to property. I will discuss the
of simpler calculation methods included that adopting a lower design wind speed tent suppliers undertake a review using causes of failures that have occurred and
the use of a lower design wind speed of severely limits the location and season in these methods, and instead rely upon precautions that ought to be taken to
28 - 30m/s. which these structures can be used. weather forecasting and previous knowl- prevent such failures in a future Digest. n

13
The Minerva effect
IRINA COMAROMI - CONSULTANT,
DRIVER TRETT UK DISCUSSES HER
JOURNEY THROUGH THE COMPANY’S
MINERVA PROGRAMME AND THE
OPPORTUNITIES OPEN TO THE NEXT
GENERATION OF CONSTRUCTION
CONSULTANTS AND EXPERTS.

Over the last two years, Driver Trett has

taken a proactive approach to recruiting
and developing junior members of staff.
This has incorporated structured in-house
and external training, secondment to
contractor and employer businesses, and
assisting senior members of the Driver
Trett and Diales teams.
‘Minerva’ is a structured training What prompted you to apply to confident that I could already achieve, Driver Trett is a team more than a busi-
programme which has been developed join Driver Trett? some that would be a challenge, and a ness. The main concern is adding value to
and implemented by the senior manage- I was always keen to be a part of an number of them that were completely our clients' projects. The idea of growing
ment team, supported by directors within international team and deal with new out of my comfort zone. However, I was and developing within the business is one
the business. Minerva candidates are challenges. The UK has a tendency to given guidance on how the competencies of the most satisfying aspects of my job.
expected to undertake several training constantly develop, which made it a fertile could be achieved and who I could work I also get to work with members of
programmes, including an additional, rele- ground for disputes. I was interviewed by with to improve those areas. This involved staff from different offices and different
vant post-graduate qualification. With the different people from the business and working with people in other regions, who specialisms. Although my background
support of their mentor or director, they one of the first things I noticed was the fact work on different projects, and attending before moving to Driver Trett was mainly
must fulfil strict criteria over a minimum of that they were passionate about their job, external events; getting to grips with the heavy civils, since joining Driver Trett I
two years. Once this is achieved, the candi- as well as having been with the company way the company is run and marketed as have worked on building projects, power
dates will graduate from the programme. for a long time. well as getting involved in complex dispute projects, consultancy, and supporting the
The hope is that these candidates will be At the beginning of my employment I work with some of the experts. expert teams in their expert commissions.
the senior management, or Diales experts, went to one of our UK offices and one of To date, I have had a number of these I have had the opportunity to work overseas
of the future. the quotes from their notice board caught more difficult competencies signed off and I have always found that senior staff are
During 2018, several of the first tranche my attention: and am being well supported to work willing to take the time to explain what they
of candidates to undertake the Minerva “CFO: What happens if we train them towards the remainder and graduate from are doing as well as what my role involves.
programme will be hoping to graduate. and they leave? CEO: What happens if we the scheme. I have had very positive feed-
One of these candidates is Irina Coma- don’t and they stay?” back on my achievements over the last What would you say to someone
romi, a planner based in the Driver It was then that I realised that there was two years and have accomplished a great looking to join Driver Trett?
Trett Bristol office. The Digest caught up no better place for me to be. As a young deal. I can honestly say that I am sure that I would definitely encourage people to
with Irina to discuss her thoughts on the and enthusiastic employee, it seemed to making the move to the UK and to Driver join Driver Trett. For the ones who are
programme. be exactly what I was looking for. I was Trett has been very positive for me, and I confident and are looking for a challenge,
eager to learn and expand my knowledge, haven’t looked back. I’m sure there will be future opportunities
Irina, what was your background and needed support from experienced to join the Minerva programme.
prior to joining the Driver Trett people in the industry in order to do so. What makes the Driver Trett team I cannot say it is easy, working and
team? Driver Trett has not let me down. A few special? studying at the same time can be a bit
I was working for a consultancy firm in months later I was offered the opportunity Driver Trett is a rewarding company to of a challenge. Although it can be a bit
Romania, specialising in planning on large to take part in the Minerva programme. work for because you get to work with frustrating that you cannot enjoy the only
civil engineering projects, such as major It came as a new challenge for me and a some of the industry's leading experts and sunny Saturday of the summer, because
infrastructure, roads, and rail. I had also very good opportunity to grow within the pick up tips and skills from them. You get you need to finish your coursework (this
spent time working in Europe and the business. the benefit of on the job training whilst would not be an issue in another climate …
Middle East. In addition to my planning It was explained to me that I would be being exposed to real issues that clients or maybe you don’t like summer anyway!).
experience, I have a qualification in quan- required to work through a large number are facing on important projects from On a serious note, determination and
tity surveying. of competencies, some of which I was various sectors. ambition are the key requirements. n

14
Contractual interpretation, expert
independence and reasonable
settlements – a jam-packed judgment
RPC and Driver Trett acted for the claim- building and, in the four years following to interpretation being used as, “two tools
DAN PRESTON – PARTNER, RPC’S ants in the recent case of OBS 125 (Nomi- the date of Practical Completion, 17 panes forming part of the same approach”.
CONSTRUCTION AND PROJECT TEAM
nees 1) and anr v Lend Lease Construction of glass failed with a number falling from The contract for the works on 125
SUMMARISES THE KEY POINTS AND
LESSONS TO BE LEARNED FROM A (Europe) Limited and anr [2017]. The the building. The cause was established as OBS stipulated that toughened glass,
RECENT COURT JUDGMENT. judgment raised a number of impor- the presence of nickel sulphide inclusions heat soaked in accordance with Euro-
tant points, summarised below, and the (NiS). pean Standard BS EN 14179 (the 2005
success of the case highlighted the bene- Standard) with a bespoke extended
fits of the legal and expert teams working Contractual interpretation holding period should be used. Heat
together from an early stage. The courts’ approach to interpreting soaking glass is accepted to reduce the
commercial contracts has been recently risk of NiS breakages on the building. The
Background restated by the Supreme Court in Wood v contract also stated that the contractor
RPC and Michael King of Diales acted Capita Insurance Services Limited and also should complete the works in accordance
for Hammerson in a claim concerning the highly publicised MT Hojgaard case. with the employer’s requirements and
spontaneous glass breakages on the Old The present claim was heard before the contractor’s proposals, using materials of
Stock Exchange building in London. The reporting of those Supreme Court deci- good quality which were appropriate for
claimants had engaged the defendants sions, but it provides a practical example their purpose.
to undertake the full refurbishment of the of the literal and commercial approaches In MT Hojgaard, it was held that ➔

15
requiring a contractor to comply with a ants' quantum expert’s criticisms of the the quantum. In his decision, the judge
particular specification did not prevent
the contract from imposing, through
settlements which the claimants had
entered into with third parties; the amounts
...the absence of reiterated now well-established principles
relating to the reasonableness of a settle-
clear language, an obligation to achieve of which formed part of their claim against contemporaneous ment and went on to add:
a particular result. The judge in 125 OBS
took the same approach and held that the
the defendants. The court recognised that
the quantum experts did not have the
evidence that the 1. The court encourages reasonable settle-
ments, particularly where strict proof
parties had intended to impose multiple
obligations on the defendants. The defend-
expertise to opine on the reasonableness
of the settlements. They also did not have
defendants had would be very expensive.
2. The test of reasonableness is generous,
ants were obliged to use glass heat soaked the necessary expertise to comment on complied with reflecting the fact that the paying party
in accordance with the 2005 standard and,
in addition, to comply with the aforemen-
legal costs incurred by the claimants while
negotiating the settlements. The claimants'
their contractual has been put in a difficult situation by
the breach.
tioned documents. These contained provi-
sions stipulating the design and service
experts were not levied with the same criti-
cism. Diales had stuck within the remit of
obligation was fatal 3. Reasonableness is evaluated as at the
time of the settlement.
life of the curtain walling system and the their expertise and not sought to opine on to their defence. 4. A claim will generally have to be so weak
appropriateness of the materials. matters which would not generally fall to a as to be obviously hopeless before it can
These additional obligations were quantity surveyor. be said that settling it is unreasonable.
found to be consistent with the parties’ The judge’s second point arose from 5. The evidential burden of proving unrea-
commercial intention to limit the impact of the defendants’ technical expert’s failure sonableness falls upon the defendants.
the residual risk of NiS breakages. to make clear in his reports or evidence
that he was aware that documentation Applying those principles to the facts
Exclusion clauses relied upon by the defendants had been before him, the court had no time for a
The court restated that clear language will fabricated. The documentation had been forensic, retrospective audit of the initial
be required to exclude a party’s liability provided by the defendants’ supply third parties’ claims to assess their merits
under a contract. In 125 OBS, the defend- chain and the defendants asserted that it as the defendants’ expert had sought to
ants sought to argue that a provision, evidenced compliance with its contractual undertake. The judge took a commercial
which stated that they were responsible obligations to heat soak. The expert knew approach to assessing whether a settle-
for breakages caused by NiS up to the that its authenticity had been questioned ment should have been made and whether
end of the defects liability period, meant but did not flag this to the defendants or the amount it settled for was reasonable;
that the claimants had assumed respon- the court. deciding it was not proportionate to test
sibility for any breakages which occurred This is one of a number of recent cases the merits of the claim as rigorously and
thereafter. The court disagreed that this which emphasise the importance of inde- forensically as if that particular dispute
provision, and a provision stating that the pendence and experts not being seen to was before the court. Contemporaneous
claimants were responsible for ‘third party try to advocate their client’s case. Experts evidence of an attempt to mitigate loss and
risks’ after the date of practical comple- owe their duties to the court rather than reach a sensible commercial agreement,
tion, were sufficiently clear to exclude the those paying their bills and the court will to buy off risk, was held to be sufficient
defendants’ liability for NiS failures. not be assisted by experts advocating their and the claimants put forward compelling
client’s case, particularly where the argu- evidence about the difficulties faced by
Record keeping ments are patently deficient. them, their tenants, and third parties due
The judgment also emphasised the impor- It was testament to the independent to the defendants’ breaches. The witness
tance of keeping good records, particularly approach taken by Diales and the claim- evidence documented circumstances
when the contract requires it. In this case, ants’ technical expert that the claimants where claims had been intimated but
the absence of contemporaneous evidence were able to recover some £14.75m of had been resolved through negotiation or
that the defendants had complied with their circa £15m claim. Indeed, by the relationship management. In this context,
their contractual obligation (coupled with commencement of trial, and largely due to it was clear from the settlements that the
a contractual obligation to keep such the early involvement of the expert team, claimants did seek to recover from the
records) was fatal to their defence. the quantum experts had agreed some defendants that they were not weak or
£12m of the amount claimed on a 'figures hopeless, which made it easier to assess
Experts as figures' basis, whilst liability remained the reasonableness of the compromise.
The judgment reiterated two impor- in dispute. The result was a shortening This case reiterates the court’s reluc-
tant points on experts and their evidence. of the original planned trial length and a tance to go behind commercial settle-
Firstly, that the court will not allow experts saving on costs for all parties. ment agreements when a party seeks to
to opine on areas outside of their exper- recover payments made under them. The
tise. Secondly, that an expert’s primary Reasonable settlements defendants need to demonstrate either
duty is to the court and that their inde- As set out above, the reasonableness that settling the claim at all, or the value
pendence is of paramount importance. of the settlements entered into by the at which the claim was settled for, was
The first point arose from the defend- claimants was a contentious element of unreasonable. n

16
Emphasising the importance
of recognition!
ALASDAIR SNADDEN – COUNTRY MANAGER, DRIVER TRETT SINGAPORE OUTLINES THE HUMAN NEED FOR RECOGNITION AND ITS ROLE IN THE CONTINUAL
DEVELOPMENT OF SUCCESSFUL PROFESSIONALS.

Introduction to receive. However, the recognition I put Without people willing to recognise talent, I have been able to realise just how
This year is my fifth working at Driver forward here has a deeper meaning that and support a footballer, then irrespective essential this type of recognition is. You
Trett. In this time, I am incredibly lucky stems from thoughts of the philosopher of how good they are, they are unlikely to will only ever understand and develop
and grateful to have been given so many Hegel. That is, to recognise someone not achieve their potential. Even Lionel Messi what you are further if it is acknowledged,
fantastic challenges and opportunities and only means accepting a person for who for example, arguably the greatest foot- supported, encouraged, and advanced by
to see so many around me excel and attain they are, but also appreciating that how baller to have graced our world, needed the people around you.
wonderful achievements and successes. It you perceive and recognise them will, in this. As a youth he required growth
has been quite exceptional. turn, make that person become what they hormones, which proved too expensive How does Driver Trett achieve
So, when asked what I feel is the most are. In other words, it is only through how for his family and his football club in effective recognition?
beneficial aspect of being part of the Driver a person is seen and treated that they will Argentina. Had those around him not There are broadly two ways effective
Trett team, my overwhelming thought is ultimately achieve a goal. realised just how good he could be and recognition is attained by working for
summed up in one word – recognition! It is so important, because ability alone pushed this very shy boy into the Barce- Driver Trett; internally and externally.
is never enough and it is seldom the case lona system (who supported his treat-
Why is effective recognition so that raw talent does not need appropriate ment), then perhaps Messi’s story would INTERNAL RECOGNITION
important? recognition which provides effective assis- have had a differing conclusion to the one This recognition is provided by those
The idea of recognition may wish to be tance. This is demonstrated well through we are fortunate enough to know now. within Driver Trett and it happens in so
seen as some sort of tangible reward - a something very close to my heart, football So, by being part of Driver Trett, a many ways. To explain why this occurs,
pat on the back, promotion, or money (or ‘soccer’ as my new Managing Director, company that overtly recognises the perhaps the best understanding comes
perhaps? These are, for sure, great things John Brells (an American), would know it). importance of embracing and encouraging from something that happened to me ➔

17
when I first joined Driver Trett and worked Sheuan Seen Chung, take nothing but with a client’s external counsel. At times
on a case for Mark Wheeler (Driver Trett
global chief operating officer). As a young
Having leading great delight from leading our teams onto
challenging commissions and watching
this can seem daunting. I remember once
the lead partner on a case did not even say
and incredibly nervous consultant, I figures in their them flourish. hello to me before deciding he needed
managed to get Mark lost in Singapore,
one of the smallest countries in the world. field of expertise Alongside this, almost organically,
internal initiatives come along as our high
to start his interrogation on a matter I
had been working on. But, having such
During which time we were speaking
about the business and Mark told me that
within Driver achievers seek to give those around them
their chance. For example, in the UK a posi-
phenomenal brains recognise that you
can provide a crucial contribution means
Driver Trett can only afford to have the Trett also means tive internal programme has been set up that their questioning, and even critiquing,
best people within the company.
At that point, given what had just opportunities where the next generation of stars are given
structured learning courses from our most
is really only benefiting you; even when
it does mean literally accounting for each
happened, I took a big gulp and thought
my days were numbered. However, given
arise to work on successful directors in order to improve
their abilities as a consultant. In Singapore,
and every last cent, late into the night.
Finally, working for Driver Trett provides
time, along with obtaining an improved landmark cases. where we have a diverse team (something opportunities to participate with external
sense of direction in Singapore, I came to I am very passionate about), our rising star bodies, such as academic and profes-
realise Mark was emphasising that, as a Sandra Somers champions the improved sional institutions, who recognise the
business, if we are surrounded by those participation of women in our business abilities possessed by our team members.
who want to be and are considered the and recently created a fantastic mentoring For example, we are often asked to
best, it perpetuates excellence, where scheme; more on these initiatives on pages partake in conferences which provide
everyone enhances everyone. This can only 13, 32 and 33 of this Digest. the chance for us to be at the forefront of
be a great thing for the business and some- new ways of thinking, or trying to digest
thing I have clearly seen and felt in the last EXTERNAL RECOGNITION recent changes that have happened in
five years in Singapore, where Driver Trett Driver Trett not only gives you the chance the engineering and construction sectors.
has gone from strength to strength. to work with great people inside the busi- Likewise, our team members get exposure
It happens when peers work closely ness, but also exceptional people outside to, and acceptance on, courses at leading
together and appreciate each other, of the business too. The benefit of which academic institutions that enhance their
talking and sharing ideas on how best cannot be underestimated. recognition and capabilities. This has very
to move forward with a commission or By being part of a 500+ strong consul- recently seen reciprocation in Singapore as
deal with a problem faced. Many a time I tancy, it means that the structure is in place our regional director, Sheuan Seen Chung,
thought I had the answer, shared it with a to handle any matter a client may have; be it and our director and quantum expert,
genius colleague and then, once receiving acting as the claims consultant or providing Faye Yeo, have now started an initiative
their advice, decided I needed to go back our delay, quantum, and technical expert with the National University of Singapore
to the drawing board. witness services. This means we are fortu- whereby students are offered internships
Indeed, sometimes the simplest nate enough to work with the finest clients with Driver Trett. This is an excellent initia-
advice from peers goes the longest way. out there, who recognise our importance tive and a crucial way in which we recog-
An obvious one for me is my IT skills, as and provide the support we need. My nise and introduce the new wave of young
those around me have made me shake off recent work has given me a chance to and enthusiastic talent into our industry.
my Luddite tendencies and realise how engage with some remarkable engineering This not only helps the interns but brings
powerful such skills will be to me and the brains, who have a thought process and important assistance, and even new ways
business. Indeed our office, through Dr knowledge that has been invaluable to my of thinking, to our senior staff too.
John Lancaster and David Pritchard's lead- own development. Alongside this, there are
ership, now has a dedicated team seeking other project team members who realise Concluding remarks
to advance the use of artificial intelligence how important information and docu- I hope the above has given food for
in bringing better efficiency to our data mentation is to our work and understand thought on just how important effective
capturing on mega projects. It is quite that we need a chance to dissect (some- recognition will be.
remarkable. times re-dissect) the information provided Since taking the role as Country
Having leading figures in their field of before putting a position or understanding Manager, I have seen our numbers in the
expertise within Driver Trett also means forward. On two of my recent commissions, Singapore office rise six-fold in just over
opportunities arise to work on landmark this support was essential in order to reach two years. This has included 13 members
cases. This provides a chance for many to the conclusions found. It simply would not of staff receiving promotion for their excel-
showcase and enhance skills on commis- have happened had this crucial support lent contributions and I am in no doubt
sions that they would have never been and active assistance not been provided. many more will follow.
able to look at, if it were not for these As well as working directly with client For this, I can only thank the people
key figures. Certainly, I know our three teams, you also get a chance to work with around these special individuals for recog-
regional directors based in Singapore, other third parties brought in to assist on a nising such magnificent talent and letting
Dr John Lancaster, Matthew Wills, and matter. This will very often mean working them shine! n

18
 Q&A: Mainland Europe
HUGO-FRANS BOL – DIRECTOR, DRIVER TRETT MAINLAND EUROPE TALKS TO THE DIGEST ABOUT THE GROUP’S REGIONAL PRESENCE AND GROWING
CROSS-CONTINENTAL COLLABORATION.

What does the current mainland

Europe business look like?
It is perhaps not known by many of our
international clients, but the Driver Group
is very active on the European continent
with offices in France, Germany, and
the Netherlands. From these offices, our
clients are assisted with the traditional
Driver Trett contracts and claims services,
as well as expert services via our Diales
brand.
One of the factors that makes these
offices distinct, is that we assist clients
who are active in the international
construction and engineering market as
well as those clients who work domesti-
cally. Our mainland European based
team all have experience in both markets,
live in the respective countries and, very
importantly, can communicate with our
clients and undertake work in English,
the local language (i.e. French, German
and Dutch) and also, if needed, in other
European languages such as Spanish,
Italian, or Russian.
This capability means that we assist
and support our clients not only when Hugo-Frans Bol – Director
they are working in their own language,
but also when they are working in English now sizeable and well established in started to increase cooperation to
and there may be a need to understand
certain documents or to communicate
We assist and their local markets, and have their own
specialisms. The Munich office works
improve and align the service offering
to our clients as they often operate
with certain people in the local language. support our clients extensively in the power and plant and throughout the various European coun-

Is that ‘local’ element important not only when they offshore wind businesses, with the
Paris office kept very busy providing
tries. Our aim is to provide our clients
with the best possible service that they
to your clients?
Yes, our local presence means that our
are working in their training in commercial awareness, FIDIC,
and NEC contracts alongside contract
need, at the various levels of their organi-
sation, wherever they operate in main-
staff understand the various different own language, but management on various French language land Europe and abroad. An important
cultures that exist in mainland Europe
and how this impacts the way our clients also when they are projects and undertaking expert appoint-
ments. Founded almost twenty years
step towards this was taken recently by
the organisation of a mainland European
undertake their business. This capability
is further extended by the fact that our
working in English... ago, the Dutch office is very well estab-
lished, and has developed its own (inter)
team conference in Strasbourg where
we focussed on increased cooperation,
business has a worldwide network of national client base, which it serves with integration of our service offering, and
offices, meaning that we can assist our The growth of our German and French the Group’s full array of services. knowledge management. This will enable
clients who work outside of mainland offices in recent years shows the appetite us to continue the current growth in our
Europe as well as those located further for a local knowledge base. The Munich What does all this mean for the home markets and develop new exciting
afield who work in mainland Europe. This office was established nearly five years future of the mainland Europe ventures on the mainland of Europe
is an important and appreciated part of ago with the Paris office opening nearly business? through our unique service offering and
our service offering. four years ago. Both operations are More recently, the three offices have established client base. n

19
40 years of Driver Trett
The business that eventually became ment, both in the UK and overseas. To and final accounts, under the business language contracts based upon British
Driver Group plc has roots dating back service that demand, in 1973 he employed name BWS International Construction standard forms.
to Northampton in the early 1970s as a contractor’s quantity surveyor, Malcolm Consultants (“BWSICC”). Internationally, In the early days the UK market was rife
the idea of Charles King, a partner in the Sarjeant. early clients were the likes of Philip Holz- with what many subcontractors consid-
practice Baker Wilkins & Smith, Chartered From Baker Wilkins & Smith’s North- mann, Hyundai, Fujita and Fujiko, where ered “Subbie Bashing” and key early
Quantity Surveyors. Charles had found ampton office Malcolm set about they were working outside of their home clients included specialists in the fields
himself fielding increasing numbers of providing contractors and specialists with jurisdictions, particularly in the Middle of cladding, glazing, mechanical and elec-
requests from contractors and subcontrac- services ranging from the measurement East where there was a proliferation trical services, refrigeration, partitioning,
tors for help with commercial manage- and pricing of tenders through to claims of British engineers, proffering English and refractory linings.

1978
In 1978, the early growth of BWSICC saw it established as a separate partnership to
Baker Wilkins and Smith, with Malcom as its Executive Director.

Malcolm Sarjeant

1979
In 1979, Paul Battrick joined the firm from
George Wimpey.

1983
In 1983, he was followed by John Mullen from
Taylor Woodrow.
1990
In 1990, Steve Driver joined BWSICC from Mowlem and set up an
1986 office in Rossendale, Lancashire, which would later become the
practice’s head office.
The 1980s saw steady organic growth in the practice, which In that decade, the client base matured further to include most of the UK’s major
was boosted in 1986 when BWSICC merged with the partnership building and engineering contractors and some of the world’s largest petrochem-
Davison George. Peter Davison and Peter George brought extensive experience in ical companies. Services particularly expanded into project and forensic planning,
the heavy engineering sector of the construction industry, with particular emphasis to which the building and civil engineering industries were applying increasing
on offshore oil and gas projects, petrochemical plants, and pipelines. Their services emphasis and sophistication.
included contract, time, and cost. Expert witness services also became a growing part of the service offering, with
Clients included many of the world’s major oil and gas companies and heavy Peter Davison particularly gaining appointments on some major cases in the UK
engineering contractors. courts and in international arbitration. The opening of several new offices, including
London, brought the practice closer to that city’s market for both domestic litigation
and international arbitration.

1998
By 1998, BWSICC had significantly outgrown the firm of Chartered Quantity Surveyors
that had spawned it, and the old partnership vehicle was considered unsuitable to
BWS Group Partners 1986 facilitate the next phase of the business’s growth.

20
 Oman office
2008-2009
Among the early significant results of the listing
were the acquisition of Commercial Management
Consultants Ltd (CMC later rebranded as Driver
Project Services) and the establishment of Driver
Consult (Oman) LLC in 2008 and Driver Consult
(UAE) LLC Dubai branch in 2009.

2012
2012 saw the acquisition of Trett Consulting in May and the launch of the expert
Coventry office
witness brand Diales in June.
Further offices were opened in Africa, North America, Asia Pacific, Europe, and
the Middle East.

London office
Haslingden office
TRETT CONSULTING 1977-2012
Trett Consulting was launched in 1977 by
Roger Trett, with its first offices above a fish and
chip shop in Great Yarmouth
The company developed into a distinctive commercial
and contract consultancy across the UK with offices in Stirling, Leeds, Manchester,
Coventry, London, and Great Yarmouth

2003 Roger focused mainly on the engineering sector, the success of which resulted in
further offices in Darlington and the Netherlands which specialised in these sectors.
In 2003, BWS Consulting Ltd became Driver Trett Consulting was renowned for the provision of construction expert witnesses
Consult Ltd. Peter George’s business specialising in quantum and forensic delay analysis.
(seconding contract, time, and cost staff into Roger Trett was one of the founding members of the academy of experts.
the offshore oil and gas industries) continued, Trett was bought by a Dutch engineering firm in 2008 before finally joining the
for a short period, as BWS International. Driver Group in 2012.

2005 2014 COMPENDIUM

For Driver Consult, the early ‘noughties’ saw growth continue apace. In 2014 the Diales delay and quantum experts were joined by a A DIALES publication

By 2005 BWS International demerged to allow Driver Consult to focus on its core team of world-class technical experts meaning that Diales could
business of providing the construction and engineering industries with commercial, provide expert teams for diverse and complex international
programming, and dispute resolution services. disputes from one main point of contact.
Five offices were established in the UK along with local vehicles in Belgium and
Abu Dhabi.
With the UK offices thriving, emphasis was now on both growing the business in
international markets and acquisitions, as the next steps in the growth of the Driver 2018
business. These are just some of the highlights in the evolution of a global business
The Board considered that these were best achieved by listing the company on AIM that now has 28 offices around the world and a turnover of over £60 million.
on the London Stock Exchange to bring in the necessary financial capital.
As Driver celebrates its 40th anniversary in 2018,
thoughts turn to what the future may hold.

GLOBAL
CONSTRUCTION
CONSULTANCY
Charles and Malcolm would hardly recognise the business, but they would surely be very proud.

21
Somewhere over the rainbow

*https://www.driver-group.com/europe/knowledge/articles/
PAUL BATTRICK – MANAGING
DIRECTOR, DRIVER TRETT AND
CO-AUTHOR OF THE FIDIC RAINBOW
SUITE ARTICLES* ATTENDED THE
FIDIC USERS CONFERENCE HELD IN
LONDON DURING DECEMBER 2017.
THE EVENT SAW THE RELEASE OF
THE 2017 EDITIONS OF THE FIDIC
RED, YELLOW, AND SILVER BOOKS.
DRIVER TRETT DIGEST ASKED PAUL
WHAT HE THOUGHT OF THE EVENT
AND THE NEW FORMS, ESPECIALLY
THE YELLOW BOOK.

This year’s FIDIC Users Conference

saw the release of the second
edition of the Red, Yellow, and
Silver Books - how did that affect
the conference?
FIDIC had announced, some eight or
nine years ago, that they were revising
the Red, Yellow, and Silver Books. The
2016 London conference saw a pre-
release second edition of the Yellow
Book, so when it was finally confirmed
that the second editions would actually be
released this year, there was a last minute
rush for seats; so much so that there were
over 300 excited delegates in attendance
instead of the usual 150 or so.
communications. were put in a contractor’s site office filing
Why the excitement if the Yellow Have FIDIC released a set of 2. Provisions to address Employers’ and cabinets in the past, any contractor that
Book, albeit not in final form, was contracts that will be welcomed Contractors’ claims treated equally and continues in the same fashion in the
released 12 months before? by all? separated from disputes. future, when using the 2017 editions, will
You may recall the interview I gave you As I noted last year, there are many that 3. M echanisms for dispute avoidance. surely have a hard time. The well-known
twelve months ago, in issue 13, discussing took, and still take, the view, “if it ain’t 4. D etailed provisions for quality manage- phrase, “fail to prepare, prepare to fail”
the pre-release edition. The controversy broke why fix it?”. However, the construc- ment, and verification of Contractor’s will be trotted out ad nauseam.
and mixed feelings towards its content tion industry moves on, there is the influ- contractual compliance.
continued throughout 2017. Fortunately, ence of case law to consider and the Are the new contracts that
the ‘friendly reviewers’ (those FIDIC rely experiences of some eighteen years of How have FIDIC achieved their different?
upon to comment upon any draft) were contracting under the old Rainbow Suite goals? I haven’t carried out a word count myself
successful in obtaining some significant to take into account. In many ways the contracts are far, far but a commentator has noted that the
revisions to make the final version more In addition, FIDIC will have noted the more prescriptive than the previous 1999 Yellow Book had some 30,400
palatable to many more potential users growing popularity of the NEC forms in versions. I always tell my clients that the words. The 2017 Yellow Book has over
within the contracting fraternity. Although, many jurisdictions. So, welcomed or not, 1999 edition of the FIDIC books are a good 50,000 words. The same commentator
it has been said that FIDIC did not enter FIDIC were probably correct in making project management handbook, that will also noted that the new contracts weigh
into enough dialogue with organisations revisions. assist a contractor. First glance of the new almost 1kg each.
that represent, for instance, engineering versions could be considered a straight-
and mechanical contractors. I certainly So, what did FIDIC try to achieve? jacket by comparison. For instance, there That’s a big increase in words. Are
look forward to seeing the commentaries In their own words FIDIC sought: are many more Notices to be submitted, there many more clauses?
on the new books drafted by the European 1. 
Greater detail and clarity on the admittedly by all Parties, and more time No, the 1999 edition had twenty
International Contractors (EIC). requirements for Notices and other bars or time limits to consider. If contracts clauses and the 2017 edition has twenty-

22
one. The change being that the old clause
20 - Claims, Disputes and Arbitration has
been split into two clauses; clause 20 -
Employer’s and Contractor’s Claims and
clause 21 - Disputes and Arbitration. This
being a result of FIDIC’s desire to promote
more dispute avoidance, by splitting the
old clause it is hoped that a claim will
not be so synonymous with a dispute.
Going on from that, clause 21 introduces
a dispute avoidance/adjudication board
(DAAB) in all the forms. A standard DAAB,
appointed at the outset of the contract, will
seek to avoid issues becoming disputes by
regular visits to the site and discussions
with the parties, amongst others. The
DAAB will facilitate the Parties in reaching
their own decisions, rather than asking the
Engineer to make a determination, the
DAAB to make a decision or, if all else fails,
an arbitral tribunal to make an award. For
me this can be only a good thing, although
I believe there should be some mecha-
nism to ensure that all bidding contractors
include the same amount for this process top of their game will succeed with their
within their tenders. claims. Contractor’s will no longer be able to so, the Contractor has to bare its soul via
seek to rely upon an ambiguous phrase programme updates, monthly reports,
Clause 20 notes both Employer’s Are there any other new provi- buried within a monthly report, or minutes and so on. On the other hand, why should
and Contractor’s Claims, what is sions that stand out for you? of meeting and claim, “there’s my notice”. the unprofessional Contractor succeed
that all about? Where do I start and where do I finish? Again contractors will have to be at the top with ill-founded claims?
In the past, FIDIC were often criticised that There are so many. I quite like that of their game.
contractors had to risk losing an entitle- amongst the definitions (90 in total I believe that in general terms, as Do you have one final thought?
ment to an extension of time (EOT), cost, compared to 68 in the Yellow Book) that stated by FIDIC, it is a contract drafted by FIDIC has set out its objectives and has
or both by failing to provide a notice to Notice is defined. It should now be totally Engineers for Engineers. Contractors may largely achieved those, although perhaps
the Engineer within the prescribed 28 clear when a contractor is saying, “an event need a small army of contract administra- it could have achieved those objectives by
days, whilst the Employer had no such has taken place which is not in my risk area tors to ensure that the contract provisions using fewer words. Whilst clarity was an
precedent. and I need more time or more money”. It are fully understood and complied with. objective, when amended, as no doubt
In the 2017 editions the same rules or brings matters out into the open, such In doing so, I believe the Engineer will be this edition will be, lengthy contracts
precedents apply to both the Employer that they can be resolved quickly, and the even more aware of any frailties within become overly complicated and contra-
and the Contractor. These rules include project moves on. the Contractor's organisation. Even more dictory within their own terms. FIDIC have
the fatal 28-day notice, albeit it is not quite recognised that amendments beyond the
so fatal since there are levels of appeal BOX 1 - FIDIC GOLDEN PRINCIPLES clarifications noted within the guidance
which may be in recognition of the judg- section will occur, and strongly recom-
ment in the OHL case¹. GP1: T he duties, rights, obligations, roles and responsibilities of all the Contract mend that all drafters of the Special Provi-
Participants must be generally as implied in the General Conditions, and sions, “take all due regard of the five FIDIC
Surely it is a good thing that the appropriate to the requirements of the project. Golden Principles (see Box 1).
Employer and Contractor are GP2: T he Particular Conditions must be drafted clearly and unambiguously. I have rarely seen a FIDIC contract that
treated the same? GP3: T he Particular Conditions must not change the balance of risk/reward alloca- has not been amended by an Employer
Obviously yes, but in reality how many tion provided for in the General Conditions. (and its Engineer) not to better its own
claims do Employers raise compared to GP4: A ll time periods specified in the Contract for Contract Participants to perform position at the expense of the Contractor’s.
Contractors? A very, very small number their obligations must be of reasonable duration. I wonder how many Employer’s will abide
I would guess. So yes, it is a good thing, GP5: A ll formal disputes must be referred to a Dispute Avoidance/Adjudication by FIDIC’s honourable recommendation?
but numerous notices, time bars and time Board (or a Dispute Adjudication Board, if applicable) for a provisionally n
limits, and deeming provisions introduced binding decision as a condition precedent to arbitration.
throughout the rest of clause 20 will ¹Obrascon Huarte Lain SA vs Attorney General for Gibraltar
[2015] EWCA Civ 712.
ensure that only contractors that are on

23
A ‘grey haired’ view on dispute
avoidance and resolution in
mainland Europe
consultant would solve problems using experience and looks at some aspects of
MARK CASTELL – REGIONAL MANAGING DIRECTOR AND DELAY AND
their knowledge, experience and judge- dispute avoidance and resolution from a
QUANTUM EXPERT HIGHLIGHTS SOME OF THE KEY NUANCES OF CONTRACT
ment¹ . mainland European perspective.
MANAGEMENT IN MAINLAND EUROPE AND ITS EFFECT ON THE REGION'S
CONSTRUCTION DISPUTES. Unfortunately, I have not retained
my original hair colour. This is probably Non-adversarial nature of
due to the effect of working for 34 years contracting
‘Grey hair’ is sometimes a term that is in 2009 was widely acknowledged as one within the construction and engineering The construction industry in the Nether-
associated with consultants, although its of the world’s leading authorities on the industries, the last 14 years of which lands, and elsewhere in mainland Europe,
use is perhaps unfair given that there are management of professional service firms have been spent in consultancy, based in is generally not adversarial by nature.
many who retain their original hair colour (such as law, accounting and consulting the Netherlands, doing a variety of work Many contractors will still proceed on the
by natural or other means. It is however, firms), defined ‘grey hair’ consultancy as including that of being an expert witness. basis of good faith (“execute a good job
also the name given to a type of work being one of three types of client work. He With this background, the term ‘grey hair’ and we’ll be able to agree commercial
undertaken by consultancies. said that ‘grey hair’ consultancy was based is probably appropriate for me. Therefore settlement at the end.”)
David Maister, who until his retirement on knowledge exploitation, whereby the this article draws on some of my personal This attitude has cultural foundations

24
and defined how business was conducted that many contracts require them to be administered the contract is likely to be
for many years. Despite the introduction
of different commercial and contractual
...a party who kept and submitted, and the burden of
proof rests with the party asking for time
in a weaker position, in the event of a
dispute, regardless of whether it is a
conditions that require a greater focus on has not properly and money, the quality and extent of common or civil law jurisdiction. This
more formal contract administration (i.e.
the FIDIC standard forms), the increased administered the record keeping is sometimes found to be
lacking.
would also include the situation where
there is only a more general document
domestic and international competition
since the creation of a single European
contract is likely l An unwillingness or inability to identify
and then quantify the time and money
that was prepared for commercial discus-
sions (that is perhaps global in nature), or
market, and the more recent move to be in a weaker impact of any changes. even no such document in existence.
towards globalisation, this view is still held
today. position, in the This needs to be considered at an
early stage of the project in order that
In such a scenario, a detailed claim
that addresses entitlement, cause, and
As a result, the various parties involved
in a construction or engineering project
event of a dispute. appropriate processes and record keeping
systems are set up. The systems then
effect will need to be put together prior to
referral to formal dispute resolution. The
(i.e. employer, employer’s representa- need to be followed, because change will required level of detail will be high, it will
tive, contractor, subcontractor) may place at the commencement of the project. surely occur and the output will need to be clearly be more difficult to achieve this if it
have different views on the importance If set up, these processes and proce- properly used to maximise a contractor’s is prepared sometime after the events that
of contract administration to the avoid- dures are then often not consistently chances of substantial recovery. Further- will be relied upon occurred, or if insuf-
ance and, if required, the resolution of followed. more, the contract may also specify a time ficient records were retained.
disputes. This may not be the case on l A reluctance to submit written commu- frame for the submission of such evalua- In the alternative scenario that a party
projects in the UK, the Americas, the nications, especially when concerning the tions, with a failure to achieve those time proceeds to formal dispute resolution on
Middle East, and across Asia Pacific. identification of change (i.e. notices) or frames often acting as a bar to recovery. the basis of a more general document that
This potential difference in attitude or other potentially ‘contentious’ matters. Notwithstanding that it may be possible to was only prepared for commercial discus-
understanding is often not explored or The importance of proper written argue that such time bars are unenforce- sions, it is again likely that this will need
considered at the tender stage, or at the communication cannot be underesti- able under many civil law jurisdictions, to be re-visited and challenged, some-
outset of the execution stage. The result is mated. Doing this well means that an this may not be an ultimately successful times by a more objective ‘outsider’, or a
that this difference itself can cause issues organisation has to firstly create aware- argument. formally appointed expert witness.
and strained relationships, which are then ness and appreciation of this issue across l A reluctance to prepare and then Both scenarios will often involve an
exacerbated if the project encounters the project and management teams. Indi- submit a detailed claim that addresses extensive forensic exercise, which may
problems such as unforeseen conditions, viduals must then understand the need to entitlement, cause, and effect. This is not require a reconstruction of particular
or if significant change is required. bring relevant matters to the attention of the same as a conscious decision to only aspects of the project, based on the docu-
those who are more qualified to investi- prepare a more general document for mentation and the outsider’s or expert’s
Effect on dispute avoidance gate, then draft and submit the required commercial discussions. judgement. Such an exercise is more diffi-
It is not always understood that proper communication. It should be appreciated Detailed claims are sometimes seen cult to do, and more costly, than if it had
administration of contracts is helpful to that it is generally better to address poten- as a barrier to amicable settlement rather been undertaken at the time of the events
the avoidance of disputes. Furthermore, tially ‘contentious’ matters at the time, but than a way in which a party can positively that are being relied upon.
that contract management is a funda- using appropriate language. set out its case, or position, in advance of
mental part of the commercial strategy l A hesitancy in recognising the need any discussions. In fact, the absence of a Conclusion
that should be put in place at the outset to reply to written communications on detailed submission and understanding The requirements of today’s construction
of a project, for minimising risk and (for potentially ‘contentious’ matters that are of the respective party’s strengths and and engineering industry demand more
a contracting party) maximising the possi- received from another party. weaknesses, prior to amicable settlement focused attention to the need for proper
bility of securing commercial return (i.e. The importance of making your posi- discussions, can often prevent agreement. contract administration. This does, and
profit). tion clear in the written records is some- will continue to, create cultural and atti-
times not appreciated by parties. This can In my experience, if one party has not tude challenges to individuals and busi-
This can manifest as follows: be a time consuming activity and divert followed the contract (i.e. notice provi- nesses within many parts of the world,
l A lack of practical understanding of key project staff from other priorities, like sions), or set out its case in sufficient including mainland Europe.
the contract provisions dealing with progressing the works, and so additional detail and at the appropriate time, then It starts with awareness and consid-
day-to-day matters (i.e. covering submis- resources sometimes need to be contem- the other party may use this as the prime eration by both project and management
sion of time schedules and progress plated. reason for not coming to an amicable teams and should be an inherent part of
updates, correspondence and reporting, l The absence of sufficient relevant and settlement, or even not entering into a contracting party’s commercial strategy.
the management of change, and interim appropriate records. discussions in the first place. In many cases, the early involvement
payments). The importance of records is well A failure to properly administer the of external objective assistance, or even
Without knowing what the contract known even if, for example, there is no contract can therefore often be the cause an expert, can assist both the avoidance
administration requirements are, a party agreement between the parties as to of a dispute. of disputes and then, if required, their
simply cannot adhere to them. whether a change has taken place and resolution. n
l Not having the specific processes and where the liability for the change rests. Impact on dispute resolution
procedures that are required to be put in In practice however, and notwithstanding Clearly, a party who has not properly ¹Managing the Professional Service Firm by David H Maister.

25
 Q&A: The Middle East
PETER BANATHY – REGIONAL MANAGING DIRECTOR, DRIVER TRETT MIDDLE EAST TALKS TO THE DIGEST ABOUT CLIENT SUPPORT IN THE REGION AND
PLANS FOR THE FUTURE.

We have grown
steadily over the
years and currently
have some 145
consultants working
from these offices
across the region.
experts consistently work on projects in
the Middle East.
As well as having a strong team of
delay and quantum experts, Diales has
recent employed locally based technical
experts. This provides our clients with the
opportunity to appoint multi-discipline
experts from one consultancy.

What shape would you like to

see the Middle East business take
in the future?
Peter Banathy – Regional Managing Director Immediate plans include the develop-
ment and growth of the support we
What does the current Middle dispute resolution services to the construc- In recent years we have been, and provide to our clients in the Kingdom of
East business look like? tion and engineering industry in the continue to be, involved with many of Saudi Arabia. Whilst this has, to date,
Having had an established presence in the Middle East. Allied to our claims specialists the regions largest, complex and iconic predominantly been provided out of
Middle East for numerous years, initially we also provide project services support projects ranging from aviation and metro our United Arab Emirates offices, we are
in the shape of our United Arab Emirates to our clients in the form of contractual, schemes through to museum projects. actively looking to establish a permanent
and Sultanate of Oman offices, we have commercial, and planning services both All our work is subject to our quality presence in the Kingdom within the next
successfully expanded our footprint over pre-contract and post contract. management system (QMS) and we 12-18 months.
recent years to include offices in Qatar Having such a range of disciplines recently attained ISO 9001 accreditation We are also looking forward to
and Kuwait. The former having been in-house, and staff at all levels from of our United Arab Emirates and Kuwait consolidating our position as one of the
established in 2010 and the latter over the consultant through to directors, allows us offices. largest providers of our specialisms to the
preceding two years. to provide blended teams tailored to the construction and engineering industry.
Our regional head office is in Dubai specific requirements of our clients and What about expert witness We will continue to work closely with
and we have grown steadily over the to the specific requirements of the issues support for your clients? our existing clients, their advisors, and
years and currently have some 145 they require support with. Since its Middle East launch in 2014, consultants and establish working rela-
consultants working from these offices Because of the regional spread of our Driver international arbitration litigation tionships with new clients.
across the region. offices, we are also in an ideal position expert support (Diales) has provided We also look forward to celebrating the
to very easily and readily supplement expert services on a large range of Group’s 40th anniversary this year with a
What capabilities does the resource requirements in any of our high-profile and complicated matters special event in the Middle East in April
regional team have? offices as workloads, and as our clients, throughout all sectors. Diales has over and I look forward to seeing some of you
We are one of, if not the largest, providers of may require. 40 experts worldwide and many of these there. n

26
Feeling constrained by budget?
STEPHEN HOMER – PARTNER,
ASHFORDS LLP OUTLINES THE
RESPONSIBILITY OF ARCHITECTS
WHEN PROPOSING DESIGNS, IN
PARTICULAR IN RELATION TO A
RECENT CASE HE ACTED ON WITH A
DIALES QUANTUM EXPERT.

The English High Court recently ruled on a

case concerning the duties of an architect
in relation to budgetary constraints on a
project. The decision involved the world-
famous architects, Foster & Partners and
the design of a proposed five star hotel
at Heathrow airport. The judgment Riva
Properties Limited, Riva Bowl Limited,
Riva Bowl LLP and Wellstone Management
("Riva") against Foster + Partners Limited
("Fosters") [2017] EWHC 2574 (TCC) gives
much food for thought for designers and
architects alike.
Judgment was given by Fraser J on 18
October 2017. The case concerned Fosters
and their duty to design a five-star hotel
in line with a budget indicated by their
client, Riva. The design included a 600
bed, five-star hotel with conferencing
and leisure facilities, a bowling alley,
and parking set out in a village theme.
The proposed hotel had seven floors
above ground, seven floors below ground
and a large glass biosphere around the
outside containing the ‘village’. Riva
notified Fosters of an intended overall
budget of £70 million (later increased to
£100 million). However, when the hotel
design was costed in January 2008, the The appointment did not refer to the to build. sion obtained, or in the alternative, reim-
estimated cost was more than double the Royal Institute of British Architects (RIBA) 2. Fosters advised Riva, after receipt of bursement of the fees wasted on the
original budget, coming in at £195 million. guide, ’The RIBA Job Book’, but did refer to the first costings, that the hotel design Fosters' design. Riva also claimed lost
Notwithstanding this high cost, the hotel Fosters carrying out Stages A and B (now could be value engineered to within profits due to the inevitable delay that will
design was submitted to and granted work stages 0 - 1) of the Royal Institute of a budget of £100 million, the parties' occur until the hotel is built and trading.
planning permission. However, the hotel British Architects Plan of Work. respective expert witnesses having
was never built as it was not possible to subsequently agreed that it was impos- Over the course of an 11-day trial,
obtain funding for a hotel scheme with Riva alleged three key breaches against sible to value engineer the design to Fosters raised a number of defences
such a high build cost. Fosters: such an extent. including:
1. Fosters failed to carry out the Royal 3. In the alternative to 2, Fosters failed 1. They were never informed of the
Key points in relation to Fosters' appoint- Institute of British Architects Plan of to warn Riva, when informed that Riva budget and denied there was any
ment were that: Work Stages A and B (now work stages intended to value engineer the design budget.
l Fosters were said to have no responsi- 0 - 1), including failing to establish the to within a budget of £100 million, that 2. They denied they had a duty to estab-
bility for costs advice. budget and as a result Riva was left with this was not possible. lish budget or design to a budget as
l There was no mention of budget in the a hotel design that would cost more Riva claimed the fees required to have a they were not required to advise on
appointment. than twice its original intended budget new hotel designed and planning permis- costs under their appointment. ➔

27
3. Any cost advice could not be expected 2007, as Fosters had not expressed any
from Fosters and Fosters informed Riva urgency when advising Riva to appoint
that they needed to appoint a quantity a quantity surveyor. Indeed, Fosters
surveyor. themselves delayed in contacting
4. Fosters denied that they had failed potential quantity surveyors until
to carry out RIBA Stages A and B and November 2007. Further, and impor-
denied that they were required to tantly, designing a project to match the
prepare the Strategic Brief under RIBA constraint of budget is not synonymous
Stage B. with providing advice on costs.
5. Fosters alleged that despite the cost
advice received from the quantity 2. So, what was Fosters' obligation in
surveyor, Riva decided to proceed to relation to value engineering the too
planning. expensive scheme? Fraser J found that
6. Fosters denied any advice was given Fosters undoubtedly knew that Riva
to Riva that the project could be value intended to value engineer the Fosters
engineered. design to a figure of £100 million and,
7. Fosters alleged Riva was contributorily in such circumstances, Fraser J consid-
negligent for, inter alia, delaying in the ered Fosters to be under a duty to warn
appointment of a cost consultant and that this was not possible. Fraser J also
failing to proceed with the project dili- accepted Riva's evidence that Fosters
gently or at all following the cessation advised Riva positively that the scheme
of Fosters' appointment. could be value engineered down to
£100 million. Given the fact it was so,
In a lengthy judgment, Fraser J found "blindingly obvious" that the Fosters
in favour of Riva on each of the alleged design could not be value engineered
breaches on the following basis: to £100 million, Fraser J found Fosters
1. RIBA Stage A required Fosters to, in breach of contract for positively
"identify requirements and possible advising it could be value engineered
constraints". Stage B required Fosters or, in the alternative, failing to warn to
to "confirm key requirements and the contrary.
constraints". Fraser J held that, "a
client's budget for a project is plainly Although Riva were not successful in
a constraint (it could also be argued claiming lost profits for reasons of
that it is a requirement too)". In the causation, as a result of the breaches
circumstances, Fraser J considered that established, and the losses suffered in
an Architect must, "establish whether instructing new architects and consultants
there was a budget or not at an early to design a hotel scheme that fulfils Riva's
stage, as that is the only way that all of brief, they were awarded £3,604,694.
the key requirements and constraints This case serves as a warning to
could have been identified". Having designers that they cannot design in
found that Fosters were aware of the a vacuum. Cost and budget are a key
budget, or in any event, should have constraint and should always be identi-
identified the budget, Fraser J found fied and considered when designing any
Fosters in breach of contract for failing project, even when the provision of cost
to complete RIBA Stages A and B with advice is expressly excluded from the
the reasonable skill and care to be designer's obligations. The court also
expected. Fosters were required decided an architect has a duty to advise a
to identify any constraints and ulti- client that a too expensive project cannot
mately design the project to match the be value engineered down to a client's
constraint of budget. However, Fosters budget, at least in circumstances where
appeared to have jumped straight this is obvious, and cannot simply stand
to Stage C and designed without any by and remain silent. The judge's willing-
thought for costs. ness to accept the guidance in the RIBA
Fosters' liability was not diminished Job Book, as to what an architect should
by any delay in Riva not appointing do at each stage of a project, is also note-
a quantity surveyor until December worthy. n

28
Q&A: Switching lanes
my boss in the UK. He mentioned a
consultancy firm, that had done an excel-
lent job for the Group on a series of claims
in Australia, had just opened an office in
Paris and I should contact them. So, I did.
DOMINIQUE AUGER – DIRECTOR, DRIVER TRETT PARIS RECENTLY JOINED THE TEAM HAVING PREVIOUSLY WORKED Within a week, contact was made, meeting
WITH DRIVER TRETT AS A CLIENT. THE DIGEST ASKS FOR HER THOUGHTS AND INSIGHTS INTO THE CLIENT’S VIEW OF held, proposal on the table and, within a
CONSULTING: few weeks, work done!

I should mention that there were two key

Did you often use consultants as factors which led to hiring Driver Trett (on
part of your previous role? top of the recommendation):
Yes, as the head of contracts department l The reactivity of the Paris team.
for the French office of one of the leading l Their immediate understanding of our
contractors in oil and gas, offshore, subsea needs.
construction, I had regular opportunities This was proved by the proposal that they
to hire external consultants. put together which reflected their under-
standing. Then they performed well, and
In your experience, what are the we settled the claim.
main reasons clients use consult-
ants? Now that you have joined the
From a client perspective, and to the consultancy business, are there
exception of the appointment of expert any services we offer that
witnesses which are performed by the surprised you?
appointed lawyers, there are three main I realise that I should have mentioned
reasons for a client to go to consultants: training as one of the reason to hire
1. Temporary lack of internal resources. consultants. However, I did not mention
2. Lack of competencies. it because, as a client, I would not have
3. A need for a third-party opinion on a requested such service from a consul-
contractual analysis or claim. tancy firm simply because I did not know
support, if required. On this basis, the a rush. It is most likely that you have not that they offer such services. As head of
Regarding lack of resources, it is a matter extra cost you will have to pay will be justi- been granted more than a few weeks by contracts, I had never been approached
of hiring individuals, but it is not merely fied. your top management for the commission with this type of service in four years.
putting ‘a bottom on a chair’. to be complete. Therefore, the selection Neither had my predecessor.
As the client, you are ideally looking Is trust an important factor? process should be short and simple.
for somebody who knows your business, Yes, this is the key factor. As the client, Finally, what would you say is the
who is immediately operational and who you need to trust the firm in order to trust How did you come to work with best thing about the Driver Trett
will fit within your team and, no need to the consultant(s) that it will propose. It is Driver Trett? team?
say it, ’somebody who is going to pay for all the more paramount when you need The firm I was then working with had I would say that the most precious assets
his rate’. To find such resource, there are to source competencies which are not internally prepared a significant exten- of consultancy firms, whether industry or
two main options, either contacting a free- internally available to prepare a claim, a sion of time claim and submitted it to its lawyers, are their reputation and their
lance agency or a consultancy firm. Free- contractual analysis, or strategy or when client, who had turned it down based on visibility. Reputation comes from the
lance agencies are plentiful, they all have you are seeking a third party opinion. In a concurrent delay analysis. Three years quality of their people, their recognised
numerous CVs available, but unless you all these instances, you put your commer- ago, this type of defence was pretty new competencies and the quality of the work
have a good track record with one of them, cial destiny into external hands. You need in the oil and gas industry. The client was they produce, either as individuals or
you are left facing the pile of CVs and trying to have full confidence . coming with US considerations and rules as teams. This is also essential in devel-
to figure out which one could be the one. on concurrent delay, whereas the contract oping a rapport between clients and
This is time consuming, stressful, and risky Once you have decided to work was under English law. Although the consultants that is essential to repeated
if you do not make the right choice. Hence with a consultancy firm, how contracts and legal team was pretty confi- engagements and working well together.
the alternative, go to a consultancy firm. do you select it? What are the dent on the strength of the claim based on As to visibility, it is the result of marketing
Then the situation is different, you do not criteria? the SCL protocol recommendations, the and business development efforts and
hire a person, you hire a person whose An objective means of selection is ’beauty top management of the company needed the knowledge that a team can demon-
CV is endorsed by the consultancy firm, contest‘. However, this is a rather long some more comfort and was ready to pay strate (training being a key area). From
a person who is somehow guaranteed process and usually, when it comes to for it. my experience, Driver Trett delivers on
as to their competencies, behavior, and getting a third-party opinion or putting a As the French office had never worked all counts and is a great team to work
who you know can benefit from back-up claim together, you (as the client) are in with consultancy firms on claims, I called with. n

29
 Adjudication begins in Canada
KEVIN O’NEILL – OPERATIONS DIRECTOR, DRIVER TRETT CANADA CONTINUES THE STORY OF ADJUDICATION’S EMERGENCE IN CANADA* AND THE NEXT STEPS
IN ITS INTRODUCTION IN ONTARIO.

*following on from his interview in issue 14 of the Driver Trett Digest, P.25

2018 started out with a bang for the among other things, extension of time industry participants in the early days. l On completion of the design phase
construction industry in Ontario. The periods for preserving and perfecting There has been a modernisation in the (now specifically identified), which is
long-awaited revisions to the Construction a lien action from 90 days to 150 days, matter of holdback release, which more key for addressing the needs of the
Lien Act (which, when put into effect, will increasing the threshold for determining properly addresses the issues of long design community on these types of
be called “The Construction Act”) received a contract to be complete to $5,000 from duration contracts and agreements under projects.
Royal Assent in December 2017, just in $1,000, among other things. Construction P3 (public-private-partnership) contracts. Of course, the most sweeping changes
time for the holiday season. The revisions liens under $25,000 can now proceed in The Province of Ontario is a world-leader to the Act are the introduction of a prompt
to the existing legislation, for the first time the Small Claims Court. in the procurement and construction of payment regime and the provision of
in over 30 years, brings the lien legislation One of the key matters that may be public infrastructure under such agree- construction dispute interim adjudica-
into line with the realities of construc- overlooked by industry participants is the ments. The new Act allows for varied tion. These two matters go hand-in-hand.
tion in Ontario. The addition of prompt clarification and strengthening of the trust payment of holdbacks, including: In introducing the new legislation, the
payment regulations, and in particular the provisions related to holdback monies. l On an annual basis for projects with a Attorney General noted that, “the average
introduction of adjudication into the mix, Section 8 represents perhaps the largest completion schedule longer than a year, collection period in construction went up
are a major change for the industry, from administrative change to the manner in and where the contract itself permits. from approximately 57 days to 71 days”
owners down to sub-trades and suppliers. which funds are received and paid. These l On a phased basis, where provided for between 2002 and 2013. The prompt
Changes to the lien legislation include, changes may prove difficult for many in the contract. payment rules will result in the general

30
contractor being paid within 28 days, with
PROMPT PAYMENT TIMELINES
each cascading payment from general
contractor to subcontractor, etc., made General Contractor / Construction Manager
within seven days. If there are disputes
related to the payment process, the parties Issue Proper Notice​ Notice of Non-Payment to Payments to
are free to invoke the adjudication proto- (see Box 1 below)​ Subcontractor​ Subcontractors​​
cols.
The goal of the prompt payment rules
0 14 21 28 35
(see Box 1, page 31) is to provide certainty
to the entire industry regarding the deter-
mination of the invoice amounts, and the Payment Due Notice of Non-Payment to Payment of Undisputed
timing of payments. While the industry in 28 days​ General Contractor​ Amounts to Contractor​
lauds the spirit of the Act overall, there are
many parties that have highlighted some of Owner / Employer​
the challenges that will be faced in imple-
menting the new requirements.
The Association of Municipalities of dramatic change for the industry. Taking is a unique arrangement, lien provisions determination but may request an exten-
Ontario (AMO), in its submission to the heavily from the experience of the UK, the continue to exist, even with the introduc- sion of up to 14 days.
Standing Committee of the Legislative construction interim dispute resolution tion of adjudication. Of course, being an Without any means of enforcing a deci-
Assembly, highlighted the short time- provides quick justice for disputes related interim dispute mechanism, the determi- sion, the entire process of adjudication
frames for determining if the work being to a specific set of matters. These are: nations of the adjudication are binding would be meaningless. The Act provides
invoiced has been properly completed. l Valuation of services or materials on the parties, but may later be subject to for many courses of action. Once the
This would have to occur within 14 days provided under the contract. determination by a court or an arbitrator. determination is made, any amount
of the issuance of a ‘proper invoice’ so that l Payment under the contract, including The adjudication process is straight- owning must be paid within 10 days. If not
a notice of non-payment could be issued. change orders or proposed change forward. The party which initiates the paid, the contractor or subcontractor may
The AMO also stated that the new Act will orders (approved or not). adjudication proceeding provides a suspend further work until the payment of:
“require every municipality to redraft all l Disputes related to a notice of non- written notice to the other party, outlining a) the amount of the determination.
of their construction contracts, develop payment. the matter in dispute, the nature of the b) any interest accrued on the amount.
new project management procedures l Amounts related to set-off by trustee or redress being sought, and the name of c) any reasonable costs incurred as a result
and change processes to ensure faster lien set-off. the proposed adjudicator. If the parties of suspension of the work, including any
payment.” l Non-payment of holdback. do not agree on the adjudicator, they may costs for resumption of work.
Taking these concerns to heart, the l Any other matter which the parties to request that the authorised nominating The contractor or subcontractor may
Government will not implement the the adjudication agree to, or that may authority appoints an adjudicator. also file a certified copy of the determi-
prompt payment and adjudication proce- be prescribed. Once the adjudicator is appointed, the nation of the adjudicator with the court,
dures until October 2019, to allow the The adjudication procedure is designed party which gave notice must provide the and that determination is enforceable
industry to prepare for these changes. to address issues mostly related to money, adjudicator with a copy of the contract as if it were an order of the court. At
The introduction of adjudication as a unless the parties have agreed to include and its supporting documents. The adju- an industry gathering in November,
means for interim dispute resolution is a other matters in their contract. In what dicator then has 30 days to make their speakers suggested that the new prompt
payment and adjudication measures
would produce a major shift in power in
BOX 1 - PROMPT PAYMENT REGIME
the contractual relationship, particularly
The prompt payment regime clearly defines the various docu- payment certifier or the owner’s prior approval. for very small contractors. Smaller sub-
ments and notices to be produced by the parties. The payment Payment of a proper invoice must occur within 28 days (see trades would be able to enforce matters
timeline is triggered by submission of a ‘proper invoice’ by the Fig. 1 for further details). determined by adjudicators without threat
party. A proper invoice must contain certain standard information An owner who disputes a proper invoice must issue a of termination.
such as: notice of non-payment within 14 days of receiving a proper The Construction Act will come into
l the contractor’s name and address invoice. For any amounts which are not disputed, the owner force in stages over the next two years.
l the date of the invoice and the period in question must pay those amounts, in full, within the original 28 day time- The administrative changes regarding liens
l the contract or agreement number, a description of the frame. and trust matters come into effect on July
services or materials that were supplied Contractors must pay their subcontractors and suppliers 1, 2018. The prompt payment and adju-
l the amount payable with the payment terms within 35 days of the initial ‘proper invoice’ subject to any dication aspects do not come into effect
l the detailed information as to where the payment is to be sent notice(s) of non-payment. If a subcontractor’s work is subject until October 1, 2019. In the interim, the
l any other information as the contract may require to a notice of non-payment from the owner, the contractor entire construction industry, from owners
In contrast to typical current practice, the giving of a proper must pass on a notice to the subcontractor within seven days of to consultants, contractors, subcontrac-
invoice can no longer be subject to the prior certification by a receipt of the initial notice of non-payment. tors, and suppliers will be preparing for
the profound changes to come. n

31
 Q&A: A decade in Oman
KOBUS HAVEMANN – COUNTRY MANAGER, DRIVER TRETT OMAN LOOKS BACK AT THE GROUP’S HISTORY IN OMAN AND AT WHAT THE FUTURE HOLDS.

maintenance contracts for Muscat

International Airport and Salalah
International Airport, including three
regional airports.
l A hospitality portfolio that includes
work on 18 hotel projects (part of the
2020 vision that expects the market to
reach a value of $1 billion).

What about the team in Oman?

The Oman office is culturally diverse with
team members coming from countries
including Oman, India, Sri Lanka, United
Kingdom, Greece, South Africa, Ireland,
and Russia. Being a culturally diverse
office is positive but at the same time
can be challenging. Differing opinions,
viewpoints, and work styles combine to
make for an enriched work environment,
one that we are sure most of our staff find
enjoyable.

How has the Oman office

changed over the last decade?
Through hard work and a diverse work-
load, the office has managed to remain
relatively unaffected by the global
economic slowdown from 2007/08
Kobus Havemann, Country Manager onwards. Our presence in the Sultanate
spreads over a large geographical foot-
How did Driver Trett first start which include: print that covers the length and breadth
working in Oman?
Our first commission was with the Ministry
l Project management consultancy for
the Batinah Expressway project. One of
We have 60 fee- of Oman. We now have 60 fee-earning
staff permanently based here, making it
of Transport and Communication (MOTC) the biggest road projects in the region, earning staff one of the biggest offices in the Group.
in 2007. On the back of that initial commis-
sion, the Group formally registered an
it involves the construction of 265km
of expressway extending the Muscat
permanently based And finally, what does the future
office in the Sultanate of Oman in June
2008.
Expressway to the Oman-United Arab
Emirates border.
here, making it hold for Driver Trett in Oman?
Since 2016, we have been reviewing our
l Commercial and contractual services one of the biggest business strategy to ensure that we retain
What services are now offered by
the Oman team?
for the Public Authority for Electricity
and Water (PAEW).
offices in the the level and quality of service we provide,
with a view to expanding our services asso-
The Oman office has grown considerably
with our services expanding to include
l Claims and advisory services for Muscat Group. ciated with dispute resolution.
This review will continue throughout
International Airport and Salalah
quantity surveying, project management, International Airport, including three 2018 and will help us to retain our posi-
claims, planning, and dispute resolution. regional airports. tion as market leaders, in a market that,
We support both private and public l Procurement and contract services for according to projections by the Interna-
sectors including on various projects of Oman Airports Management Company tional Monetary Fund (IMF), is expected to
national importance. Some examples of (OAMC). Procuring all supply and grow at more than four per cent in 2018. n

32
Where are the women?
SANDRA SOMERS – DIRECTOR, DRIVER TRETT SINGAPORE EXPLORES THE SLOW GROWTH OF THE NUMBERS OF WOMEN ENTERING THE CONSTRUCTION
INDUSTRY AND HIGHLIGHTS SOME OF THE STEPS BEING TAKEN TO SUPPORT THOSE WHO WISH TO DEVELOP AND PROGRESS AS EXPERT WITNESSES.

Driver Trett is committed to delivering of the UK construction workforce in 2015. tion community to commit to increasing
‘great quality service and real value’. We
recruit ‘only the best professionals in the
This is a slight improvement since 2002/03,
where women accounted for 9%².
“Research shows that the number of female arbitrators on an
equal opportunity basis³.
business’ and strive to be ‘the employer of Interestingly, these statistics are actually gender equality is as Notwithstanding this, it might be
choice in our industry’.
These commitments are reflected
worse when looking at the appointment of
female arbitrators. The London Court of good for business as understandable that construction does not
appeal to everyone, regardless of gender.
in the fact that we house some of the
world’s leading experts and work on
International Arbitration (LCIA) showed in
their 2013 annual report that just 9.8% of
it is for individuals. Many years ago, I remember my dad’s not
quite so supportive reaction when I told
the best projects. Delivering high quality the 162 appointees selected by the LCIA, Diverse teams and him I was leaving my cosy job in an engi-
work means having the highest calibre
workforce and to achieve that, we need
and 6.9% of the 160 appointees selected
by the parties, were female. companies produce neering office, “to go build a road!” and
despite that, I have not looked back since.
diversity.
In terms of why diversity is needed, The
However, all is not lost. The construc-
tion industry in the UK is proactive in
better results and The same cannot be said for the legal
profession, where regardless of the
Wall Street Journal coins this nicely: attracting women. For instance, the higher revenue and fact that approximately 60% of all law
“Research shows that gender equality is
as good for business as it is for individuals.
government launched the #notjustfor-
boys campaign which highlights issues profits, which lead graduates are women, this figure steadily
decreases over time and rank; such that,
Diverse teams and companies produce
better results and higher revenue and
surrounding getting women to work in
industries like construction, where they
to more opportunity by the time we get to the managing
partner level, only 4% are women⁴.
profits, which lead to more opportunity are under-represented. Similarly, the for everyone, not just So, what does that mean for us? In
for everyone, not just women.”¹
We all know how the statistics for
Equal Opportunities Commission (EOC)
also launched a campaign ‘Know your women.” terms of dispute resolution services,
Driver Trett generally consists of construc-
women in construction are challenging
at best. So much so that the subject
place’ encouraging women to consider a
career in construction.
Wall Street Journal tion professionals, engineers, and
quantity surveyors. Many of us also have
even makes headlines in global media. Further, there is the Equal Represen- September 2016 advanced qualifications in law and alter-
For instance, the Guardian newspaper tation in Arbitration (ERA) Pledge, which native dispute resolution (ADR), we may
reported that women made up just 11% calls on the international dispute resolu- even be non-practising barristers. In ➔

33
terms of the work that we do, this places UK organisation #ChicksWithBricks also and group mentoring sessions having
us somewhere between the two arenas
of construction and law. Insofar as the
include the lack of female role models as
a factor. Further, the Institution of Engi-
Both Rashda Rana taken place. In fact, a similar initiative for
our male consultants is currently being
numbers of women are concerned, need- neering Designers⁸ state that the lack of SC and Annalise discussed. We have also been reaching
less to say the implication is severe.
Looking at the overall number of fee-
females choosing to study science related
subjects is the lowest in Europe and that Day QC agree that out to our female experts in Europe to see
what we can achieve.
earners in Driver Trett, currently around
15% are women⁵, this is an improve-
diversity is required to overcome this
problem. Overall, confidence came up as
the female experts To improve networking and profile
building, the Singapore office has also
ment from 13% in June 2017 so we are a key factor. they have worked set up an events calendar for local and
heading in the right direction. Within the
Diales expert witness team around 12%
On the legal side, our female friends
appear to face different challenges. with were excellent: regional seminars, conferences and
networking events. The team is notified
are female (a massive improvement on
the 0% figure that the service launched
According to a report by the Institute for
Continuing Legal Education in California,
clearer in their on a weekly basis of upcoming events and
participation is encouraged.
with in 2012), this percentage of female 85% of the women lawyers surveyed reports and in Outside of Driver Trett, there are
experts appears to be mirrored across
our industry⁶. In addition, the number of
perceived a subtle, but pervasive, gender
bias within the legal profession. Almost the witness box, several organisations specifically for
supporting the fairer sex in a professional
females within the Diales development
group and showing interest in our Minerva
two-thirds agreed women lawyers are not
accepted as equals by their male peers. As
and tend to have capacity, such as www.arbitralwomen.org
and www.nawic.co.uk⁹.
programme is encouraging for the future. a result, women are often overlooked or done more work There may be networking groups in
Focussing on the role of experts, I asked
several outside professionals their views.
passed over.
Annalise Day points out that the themselves. your area (Singapore has ‘Women in
Arbitration’ that meets regularly), or it may
Generally, female experts are a rare tendency is to appoint the same experts, be worth seeing what is available within
breed. However, the feedback on how in the same way that people appoint the existing institutions such as CIOB and RICS.
well they perform is positive. Both Rashda same arbitrators, and those experts tend overcoming obstacles. She shares: To conclude, despite the significant
Rana SC⁷ and Annalise Day QC agree that to end up being men. Rashda Rana also “The best way is to show them your challenges, progress is being made.
the female experts they have worked with states that: brilliance which means working doubly Support is out there, and things are slowly
were excellent: clearer in their reports and “Just as most people think of men when hard and being doubly good at whatever changing. At Driver Trett, despite some
in the witness box, and tend to have done you say ‘Arbitrator’ or even ‘Counsel’, it is you do.” offices employing a high proportion of
more work themselves. they think of men when you say, ‘Expert females for the industry, when it comes
Head of Dispute Resolution at Drew Witness’. You have to get out there and On a more practical level, to female experts, it seems we are yet
Napier states that he has seen good and press the flesh to make sure people know Annalise suggests: to stand out. Ultimately, it is up to the
bad experts of both sexes (this is inclusive about you.” “…finding a mentor whether male individual to determine how they wish to
of other industry sectors such as medical). Making sure people know about you or female. You can also reach out to progress and this applies to both males
Notwithstanding the general rarity, he is a key piece of advice for any poten- supportive lawyers for guidance and feed- and females alike. Certainly, in Asia and
states that he would not consciously insert tial expert (whether male or female). back – don’t be afraid to ask for help!” parts of Europe, Driver Trett appears to
the gender debate into any expert selec- However, how do we do this and what In line with this, the Driver Trett Singa- be the employer of choice as far as female
tion process, it’s all about competence and else can we do? pore office has set up a mentoring initia- consultants are concerned, offering a work
steadiness which overshadows sensitivi- tive for female consultants in both delay place that is not only open to diversity
ties over gender. Rashda suggests: and quantum. Going against the trend but also supportive of its growth, which
This feedback is very encouraging. So, l Networking – this is equally as impor- for Asia, Singapore and Hong Kong have the industry so badly needs – and who
aside from the obvious reason of family (if tant for lawyers as it is for experts. an unusually high proportion of female knows, with these types of environment
that may count), what is holding us back? l Build a profile – attend seminars and consultants (there is also a high propor- now being set up, we may even see the
To start with, it’s not the easiest events where possible. tion of female consultants in the France number of female experts in the industry
job. The Academy of Experts state: l Help yourself and help others. This office). The initiative is not to exclude rise. n
“Firstly being an expert is certainly not includes being assertive without being the male consultants, but has been set
for everyone irrespective of gender. In aggressive, promote your skills and up to support and encourage our team
¹ https://www.wsj.com/articles/sheryl-sandberg-women-are-
addition to knowledge and experience, expertise. should they wish to participate. Experts leaning-inbut-they-face-pushback-1474963980 dated 27
one has to be prepared to be ‘shot at in l Find support - surround yourself with Faye Yeo from Singapore, Ashlea Read in September 2016
²Article ‘The Changing Role of Women in the Construction
public’, work totally anti-social long hours supportive people: family, friends, Hong Kong, Karen Wenham, and myself Workforce’ published by the Chartered Institute of Building
frequently at very short notice. It is impor- colleagues, bosses, mentors. have kindly agreed to act as mentors for ³www.arbitrationpledge.com
⁴ Interview of Rashda Rana by LexisNexis “Is there a Gender Gap
tant to recognise that you cannot become l Make sure you get credit for the work the Singapore and Hong Kong teams. in Arbitration?” dated 07 April 2015
an Expert overnight.” you have done. We hope that this initiative will start the ⁵ Based on internal HR stats as at December 2017
⁶ From looking at information available on competitors’
The Society of Women Engineers state ball rolling and extend further into other websites, the ratio of male to female experts in construction
that there isn’t a strong network of females Further and most importantly – don’t give regions and across the globe. was generally similar
⁷ President of Arbitral Women
in engineering. The American Society up! Rashda tells us that perseverance and The mentoring initiative has already ⁸ May/June 2017
of Mechanical Engineers (ASME) and courage has been key for her personally in proven successful with both individual ⁹ The National Association of Women in Construction

34
A reasonable settlement?
A reaffirmation of principles
MICHAEL KING - DIRECTOR, DRIVER TRETT GLASGOW AND DIALES QUANTUM EXPERT APPEARED AS QUANTUM
EXPERT IN THE TECHNOLOGY AND CONSTRUCTION COURT IN APRIL 2017 ON BEHALF OF THE CLAIMANTS. HE LOOKS
AT ONE ASPECT OF THE CASE WHICH DEALS WITH THE SETTLEMENT OF CLAIMS WITH THIRD PARTIES AFFECTED BY
THE CONSTRUCTION WORKS.

Background Between 2008 and 2012, seventeen of settled by the building owners in the sum nees v Lend Lease Construction (Europe)
125 Old Broad Street is a 26-storey the glass panels shattered due to nickel of £792,785.77. Subsequently this sum Ltd, the judge, Mr Justice Stuart-Smith,
office building with a lower level podium sulphide inclusions. The building was clad was then sought from the defendants as reaffirmed the principles which apply
building in the heart of the City of London, in scaffolding as an emergency measure part of the court action. where one party settles a claim with
it provides 320,000 square feet of category and was eventually re-glazed between another party and then seeks to recover
A office space and 6,400 square feet of 2012 and 2013. The Issue that amount from a third-party.
retail space at ground-floor level. As a result of the glazing failures, and Settlements between parties in the As Mr Justice Stuart-Smith noted, the
Between 2006 and 2008 the building, subsequent re-glazing works, some of the construction and engineering industries are applicable principles of law were usefully
which formerly housed the London building tenants and adjacent occupiers a commonplace event. These occur at all summarised by Mr Justice Ramsey in
Stock Exchange, was redeveloped and raised claims for business interruption, levels between contractor, subcontractor, Siemens Building Technology FE Ltd v
the building was clad with storey height loss of profit, and disruption. designer, employer, and third-parties. Supershield Ltd [2009] EWHC 927 (TCC)
curtain walling. These claims were negotiated and In the recent case of 125 OBS Nomi- as follows: ➔

35
 (1) For C to be liable to A in respect of A’s be said that the loss attributable to a ance [1998] Lloyds Rep IR93 Mr Justice
liability to B which was the subject of a
settlement it is not necessary for A to
reasonable settlement was not caused
by the eventuality or the breach.
[Settlements] 
Rix stated that:
“The brokers (Commercial Union)
prove on the balance of probabilities (4) In general if, when a party is in breach occur at all levels submit that the settlement agreement
that A was or would have been liable
to B or that A was or would have been
of contract, a claim by a third party is
in the reasonable contemplation of
between contractor, was unreasonable. I suspect that in the
circumstances the evidential burden of
liable for the amount of the settlement.
(2) For C to be liable to A in respect of
the parties as a probable result of the
breach, then it will generally also be in
subcontractor, that is on the brokers……”
(2) Similarly, in BP plc v AON [2006] EWHC
the settlement, A must show that the the reasonable contemplation of the designer, employer, 424 Comm Mr Justice Colman noted
specified eventuality (in the case of
an indemnity given by C to A) or the
parties that there might be a reason-
able settlement of any such claim by
and third-parties. that:
“…the fact that the terms of the settle-
breach of contract (in the case of a the other party. ment were entered into upon legal
breach of contract between C and A) (5) The test of whether the amount paid in advice establishes, at least, that those
has caused the loss incurred in satis- settlement was reasonable is whether terms were prima facie reasonable. It is
fying the settlement in the manner set the settlement was, in all the circum- The judge, in 125 OBS, also noted that then for the Defendant to displace that
out in the indemnity or as required stances, within the range of settle- in such circumstances the court encour- inference by evidence to the contrary,
for causation of damages and that the ments which reasonable people in ages reasonable settlements, particularly by establishing for example, that some
loss was within the loss covered by the the position of the settling party might where strict proof would be very expen- vital matter was overlooked”.
indemnity or the damages were not have made. Such circumstances will sive, and also that the test of reasonable-
too remote. generally include: ness is generous reflecting the fact that the In conclusion, wherever you find yourself
(3) Unless the claim is of sufficient (a) the strength of the claim; paying party has put the other in a difficult in the industry hierarchy, it is important
strength reasonably to justify a settle- (b) Whether the settlement was the situation by its breach. to remember the established principles
ment and the amount paid in settle- result of legal advice; It was also noted that a claim would in Siemens Building Technology FE Ltd v
ment is reasonable having regard to (c) The uncertainties and expenses of have to be so weak as to be obviously Supershield Ltd [2009] EWHC 927 (TCC).
the strength of the claim, it cannot be litigation; hopeless before its settlement could be These set out the framework that any
shown that the loss has been caused (d) The benefits of settling the case considered unreasonable. party should adopt when considering the
by the relevant eventuality or breach rather than disputing it. Also of significance was the re-emphasis implications of settling claims, which it may
of contract. In assessing the strength of (6) The question of whether a settlement that the evidential burden of proving ultimately seek to pass on to a third party.
the claim, unless the claim is so weak was reasonable is to be assessed unreasonableness of any settlement falls These principles endorse the post-civil
that no reasonable party would take it at the date of the settlement when upon the defendant. This principle is set justice reform stance of encouraging medi-
sufficiently seriously to negotiate any necessarily the issues between A and out in two cases. ation and settlement, which diverts work
settlement involving payment, it cannot B remained unresolved. “ (1) In Mander v Commercial Union Assur- from the already busy court system. n

A DAB hand … Dispute resolution under NEC4

Driver Trett is delighted to announce this year’s UK spring seminar subject.
The Contractor has reached the final stages of the fit out of the Ritz Krakhaa
Hotel. The project is close to completion, and yet the parties are far apart on
various elements of the account. The accounts are currently £100M apart and
relationships have deteriorated. The disputes involve major subcontract pack-
ages, extended time for completion and an allegation of a major defect.
This contract contains a Dispute Advisory Board (DAB). Does this method
actually work? Can the disputes be effectively resolved this way? Is it possible for
the relationships to survive and even improve between the parties?
Contact your local Driver Trett office or email [email protected]
to find out more.
Last year, over 1,000 engineers, surveyors, and commercial managers
attended these scenario based presentations, with feedback showing that
96% of delegates rated them good or excellent. Driver Trett offer other semi-
nars and training on various topics and can provide in-house training to suit
our clients’ requirements. For more information on the training and seminars
that we offer at Driver Trett please visit the knowledge page of our website.
http://www.driver-group.com/europe/knowledge/events-and-seminars/ n

36
Is Paris the home of international arbitration?
Diales³ expertise, has noted an increasing
MARINE MAFFRE MAUCOUR &
demand for French speaking experts in the
JOANNA CLOSA – CONSULTANTS,
DRIVER TRETT PARIS HIGHLIGHT THE delay and quantum fields. This seems to
SUCCESS THAT PARIS HAS ACHIEVED be bolstered by the increased number of
IN BECOMING SYNONYMOUS AS arbitration cases in French speaking coun-
A WORLD-CLASS LOCATION FOR tries, particularly in Africa.
INTERNATIONAL ARBITRATION AND Having hosted close to 300 participants
WHAT THE CITY’S FUTURE MAY from some 40 countries, the first PAW, in
HOLD. April 2017, fulfilled its commitments and
ambitions to share information and best
Paris has set the tone of its ambition to practices. Following on from this success,
establish itself as the ‘Home of interna- the second PAW, running from 9 to 13
tional arbitration’. The organisation of April 2018, will provide arbitration prac-
the second annual Paris Arbitration Week titioners and academics a unique forum
(PAW) aims at consolidating a historical for discussing the future of the profession.
position in a competitive environment. A wonderful show-case for anyone who
Since the 1960s, French law has been at would like to experience Paris as the home
the forefront of the development of inter- clear: “the promotion of Paris as the world’s must keep differentiating itself in a context of international arbitration.
national arbitration. More recently, positive leading site for international arbitration.” where a British leadership pre-exists. Driver Trett has provided services from
signals were sent through the 2011 reform¹, Benefitting from a long-standing repu- Indeed, according to the ICC report² in its Parisian office since 2015 and will be
thus reasserting the liberty and flexibility in tation as an excellent arbitral seat and 2016, common law, British practitioners participating in these discussions and
terms of applicable laws and languages. from a geographic and logistic advantage, and English language still dominate the sponsoring the overall event in 2018. n
To this can be added a clear jurisprudence Paris based arbitration is endowed with discipline. Sources: ICC-france.fr http://parisarbitration.net
which has been followed by laws in many five arbitral affiliated institutions including However, Paris can count on a new trend ¹“Décret du 13 janvier 2011”
²Full 2016 ICC Dispute Resolution statistics published in
other countries that have adopted princi- the ICC Paris (now chosen for approxi- showing a growing demand for French Court Bulletin.
ples similar to those established in France. mately 90 ICC arbitrations per year). speaking practitioners. Driver Trett's Paris ³Diales is the expert witness support services arm of the
In this frame, the objective of PAW is But Paris cannot rest on its laurels and office, through the increased demand for Driver Trett business.

Driver Trett France referenced as a training organisation by DataDock

Actively involved in the development of contract
management in France, Driver Trett’s local team
provides support to its clients in the implementation
and development of their company’s contract manage-
ment. The team assist them throughout the life of their
contracts, including in the critical phases of preparing
and defending claims.
The competencies of the team and the quality of their
advice and submissions have led clients to consider
Driver Trett France (DTF) as a key partner when they
look for training. DTF is very active in the development
of training courses, from standard introduction to
contract management to entire programmes specifically
designed for a client’s needs, embracing their specific The directors of DTF are involved in the first university Lefebvre have already started.
terms and requirements, and based on their own exam- degree created in France for contracts management, In September 2017, Driver Trett France was accred-
ples. namely the DU Contract Management run by Panthéon ited by DataDock, a French state body which references
2018 sees the launch of a full training catalogue - Assas Paris II University. They also bring their expertise training organisations whose courses are recognised as
covering both contract and claim management through to the contract management programmes led by Francis being eligible for continuing education funding; as they
to expert courses, including those related to both FIDIC Lefebvre Formation, one of the key players for profes- meet the quality criteria in terms of setting-up, follow-
and NEC contracts. sional training in France. Indeed the session with Francis up, and quality control of the training they offer. n

37
 Q&A: Driver Trett UK
TOM COMERFORD – REGIONAL MANAGING DIRECTOR, DRIVER TRETT UK AND DIALES QUANTUM EXPERT DISCUSSES THE UK TEAM AND HIS ASPIRATIONS
FOR THE FUTURE OF THE BUSINESS.

What does the current UK busi- knowledge and experience, our commer-
ness look like? cial and quantum teams have been
As Driver Group celebrates its fortieth involved in some leading disputes. Our
birthday, the Driver Trett business in the independent experts have given evidence
UK is currently comprised of 117 staff in reported Technology and Construction
located across seven regional offices in Court (TCC) cases and in major arbitra-
Glasgow, Teesside, Haslingden, Liver- tions.
pool, Coventry, Bristol, and London. In addition to providing our break-
Each office provides a suite of services fast seminars, plus regular contribu-
including planning and programming, tions at industry conferences and lawyer
delay analysis, commercial and contract hosted seminars, we continue to provide
management, quantity surveying, dispute specialist training to client’s personnel.
resolution support services, and expert Topics include commercial awareness
services. and change management and this year
Our clients operate in a variety of we will also be rolling out training on the
sectors including building, infrastructure, latest NEC4 and FIDIC suites of contract.
energy, oil and gas, marine, process, and
transportation. We have been privileged Tom Comerford, Regional Managing Director What shape would you like the UK
to work with many of them for many business to take in future years?
years, on some of their most interesting services. In 2014, the initial delay and Our aim is to maintain the high-quality
and challenging projects.
Our joined-up approach means our
quantum expertise was supplemented
with architectural and building services.
We have been of reports, services, and assistance that
we provide to clients and tribunals. The
team assist clients on commissions, Those skill sets have now expanded privileged to work changing nature and volume of records
not only across the UK but also in other further into civil and structural engi- in disputes, the methods by which they
parts of the world, either as a standalone neering, mechanical and electrical engi- with many of them are communicated, combined with the
service or as part of an integrated team.
In addition to our growing languages
neering, chemical process engineering,
project management, and energy from
for many years, evolution of data analytics, electronic
data management, e-discovery and visu-
capability in the UK, being part of a global waste. Our technical teams are involved on some of their alisation are just some the challenges
business means we can also call upon in numerous projects across the UK and that we will continue to address as we
over 30 different languages, local knowl- also in the Middle East and Australia. most interesting move forward.
edge, and the cultural awareness of our
colleagues in our twenty-seven offices What other capabilities does the
and challenging We currently have around twenty-five
Diales experts based in the UK and are
across Europe, the Middle East, Asia team have? projects. looking to grow these, both internally
Pacific, and Canada. We provide the complete spectrum from within our Diales development
of programming and delay analysis, group and externally by attracting key
Have there been any significant including programme preparation at all experts with our existing capabilities, and
changes in recent years? levels, validation, updating, progress those with new skill sets.
We have seen notable growth in our reporting, and recovery. Our Diales We will continue to work with our
Glasgow office and the strengthening delay analysts regularly use leading soft- clients on their traditional projects, but
of our teams in Coventry, Bristol, and ware and their expertise to interrogate also to provide support to new projects
London. Around the country, but particu- substantial and complex programmes that will shape our future infrastruc-
larly at our Teesside office, we work to understand the reasons of change. ture such as HS2, nuclear-new-build
closely with the Driver Project Services Utilising an appropriate technique to suit projects, and highways schemes to name
business in the specialist areas of process the circumstances, they provide robust but a small few. Further afield, we look
and industrial engineering, oil and gas, analysis on a prospective or retrospective forward to continued collaboration with
and offshore structures. basis across a range of project sizes and our colleagues around the world and
It is nearly six years since Diales was dispute values. supporting our clients with their global
formed to provide independent expert Using their considerable industry projects. n

38
The power of 17, 19 and 25
To start out, a quiz for all the learned Puzzles aside, I wanted to share a little being in the Middle East, let alone Kuwait.
ANTHONY CROWLEY – COUNTRY
people reading this article. What is the more about one of Driver Group’s newest I had no notion of becoming a ‘country
MANAGER, DRIVER TRETT KUWAIT
relevance of the simple series above and offices, in Kuwait; the work that we are manager’, but I was asked a simple ques-
EXPLAINS HOW HE CAME TO BE IN
KUWAIT AND SOME OF THE JOYS what do you think the next number in the doing here, what the market is like, and tion and, as I was one day away from
AND CHALLENGES OF SETTING UP series should be? where the market may be in the next few finishing a claim in Mexico, and not neces-
BUSINESS IN THE LAST TWO YEARS. This is not intended to be a Facebook, years. sarily knowing what I was going to do next,
or indeed a LinkedIn brain teaser but just So where do we start? Oil price – ah, the request appeared to tick a number of
an observation on life and doing business that old chestnut! No, not going to write boxes. Moreover, the wife was keen(ish).
here in Kuwait. If you remain interested, about that; not one jot. It’s been done to Like the majority of you reading this,
and you can actually get through the death and I cannot add anything more all I knew, or could recall, about Kuwait
monotony of the remainder of this article, than the custodians of financial wisdom was on the news in the early 90s. No idea
then the answers are revealed in the final have already committed in droves else- after that but, in good time, I packed my
paragraphs. For those who are not inter- where. No, what I’m going to focus on is bags, moved over, and took over control
ested, then you are obviously learned the challenges of, or, perversely the joy of, of the office on 1 October 2015. When I
enough to see straight through my thinly doing business here in Kuwait. say office, I mean the laundry room in my
veiled puzzle! Let me say that I had no intention of apartment. It was eight square meters and ➔

39
to be the Kuwait office for some time (as
the building identified prior to my engage-
ment never actually came to fruition –
delays in permits, electrical supply, etc.).
After much waiting and being provided
with numerous completion dates we
finally elected, in October 2016, to move
into a villa in Mahboulah (rough transla-
tion ‘mad lady’) which we currently occupy
and where I share the building with our
sponsor, Energy Services Middle East and
his Kuwaiti legal partner, MMA Law.
Since landing, I have been ably assisted
in developing the business alongside my
sponsor, Claude Jamal. Kuwait is not a
market like any of the other GCC countries.
Business is carried out here in a completely
different fashion to that of other Middle
East countries and it certainly took some
getting used to. I am very grateful to
Claude, and his partner Abu Sultan, who acquisitions along the way and a number by the sheer volume of business devel-
have assisted me in growing the business
to where we are today. It’s been a hard
...the laundry room of notable departures also, but we
continue to go from strength to strength.
opment carried out by the Kuwait office!
l This figure is borne out in terms of one
two years, but we are now starting to see in my apartment. This is, perhaps, reflected in the type and of our recently acquired clients where

It was eight square

the results of that hard work. nature of the commissions that we have it took approximately nineteen (19)
I am often asked whether having a been actively involved with since our months to sign a consultancy agree-
business based in Kuwait, and living
and working in Kuwait, is an imperative.
meters and to be inception. These include new refineries,
electrical transmission projects, university
ment with us. I am almost certain that
our number of visits to see him over this
Undoubtedly, the ability to meet clients, the Kuwait office for buildings, residential and commercial time was far in excess of the average of

some time...
existing or new, on the same day as an developments, new harbours, road and seventeen (17) visits referred to above.
enquiry being received cannot be meas- bridge construction, tank farms, gathering l We undertook to register the business
ured. I think our ‘competitors’ have not centres, and water projects. in October 2015 and were successful in
yet fully understood this and have flown We have also been active in the wider formally (finally?) registering the Kuwait
in their personnel on an ‘as and when’ Kuwait construction scene through our business in November 2017 which
basis (this is still the situation that exists involvement in industry events such as the was a total of twenty-five (25) months
today). When I say competition, there is a Leaders in Construction conference (where from start to finish. On the same day,
lack of competitor presence on the ground we were the platinum sponsor for 2017 we also obtained confirmation of ISO
in Kuwait and this has also served to our and will be again in 2018), our joint semi- 9001:2015 certification for the Kuwait
advantage in our first two years, and will nars with our legal partners here in Kuwait, business – not a bad day’s work if I may
continue to be the case as we consolidate and our participation and presentation at say so myself!
our position in the Kuwait market. the Royal Institution of Chartered Surveyors’ Easy if you know the answers. However,
Our team of consultants has grown (RICS) events in Kuwait. The Kuwait busi- I cannot imagine there were too many of
steadily and we are now in a position ness fully intends to be the market leader in you reading this article that would have
where we can readily expand to serve any this respect and there are already a number been able to guess (but then you would
size and type of project. As a business we of similar events planned for 2018 which need to be working in Kuwait to, perhaps,
have concentrated on steady growth and will be announced shortly. better understand).
have expanded to a moderately sized What about my brain teaser at the begin- What’s the next number in the series?
team of consultants who have consider- ning of this article? Well, no real science or Who knows, but I would say one (1) as
able collective experience across a wide mathematics behind it, only to say that: in one month's time, 12 April 2018 to
range of industry sectors. We can provide l In my research of the market in be exact, we are looking forward to the
specialist advice on contract, commer- Kuwait, and before I actually travelled formal launch of the Kuwait business
cial, quantum and matters of planning in-country, I read that the average and meeting with as many of our clients
and delay, irrespective of whether we number of visits to see a client before as possible (existing and prospective) to
are representing client, contractor, or winning any work was seventeen (17) celebrate together.
specialist subcontractors alike. visits! That is a considerable amount of I hope to meet some of you then, or at
There have been a number of notable coffee drinking and certainly evidenced one of our upcoming seminars. n

40
 BYTES
DIGEST BYTES RETROSPECTIVE IN THE
DRIVER TRETT DIGEST LOOKS BACK AT OUR BEST BYTES SO FAR...
Find all our Bytes and articles at www.driver-group.com/global/knowledge/articles/ or click the covers below to discover some of our best Bytes NEXT ISSUE
DIGesT DIGEST DIgeST DIGEST DIGEST The next issue of the Digest, as always,
The

THE

THe

THE

THE
NEWSLETTER

NeWSLeTTeR

NEWSLETTER

NEWSLETTER
NeWsLeTTeR

will be covering all industry sectors

Issue 1 | November 2012 Issue 2 | March 2013 Issue 3 | June 2013 Issue 4 | September 2013 Issue 5 | January 2014

In this issue...
welcome to the roger trett New National
In this issue...
■ Focus on Q-Construct P2 Welcome to the In this issue...
■ Where and how arbitration
2013 – A year of growth
across each of the Regions
costs are incurred and how

Driver Trett Digest

driver trett digest
■ Adjudication in Malaysia p1

joins the driver

■ Qatar's logistical to mitigate these costs? P2

Director for Australia

■ Sufficient Information p6 challenges P4 ■ Appropriateness of
A very warm welcome to the first edition of the Driver Trett

and include news and articles from

programmes and the

trett team
Digest, issued by the combined teams of Trett Consulting ■ Claims in Tort P5 'ramblings of a planner' P4
■ The Greater Force p7
and Driver Group. I am delighted that the Digest, which Dave Webster – Chief Executive Johannesburg office. We chip nature of the client
■ The hounded expert witness
is hugely popular amongst Trett’s clients, contacts, and Driver Trett is pleased to announce the appointment of David Hardiman to head its operations in Australia. ■ Payment legislation Officer, Driver Group plc now work for many blue base, the volume of repeat
■ Hot Tubbing p10
– lulu and other dogs P6
colleagues and draws a circulation of over 17,000, will not I am very pleased to be joining Driver Trett, albeit on a part time basis, to David has over 30 years’ experience in construction, specialising in claims and dispute resolution, and is in Australia P7 Kevin McPhilomy and high rise projects. chip organisations in this business, and clients
only continue, but extend further, featuring more articles assist in the development of the Driver Trett and DIALES expert witness a leading expert witness having testified in arbitration and litigation in a number of jurisdictions. In his Middle East issue – Technical Editor Further variety is provided by another ■ Retrospective delay 2013 was a great year for Driver Group sector and our people are appointing us across our
and insight with a greater frequency than ever before. brands. I am pleased that Trett has joined a group that understands its career, he has advised on major construction and engineering projects in europe, South east Asia, Middle guest contributor, Sarah Wilson of analysis under the NEC P8 as a whole. We achieved growth of 41% identifying many examples regions, probably the
■ You’re Getting Nowt p12 ■ Why another expert? P8
business. I am also very proud that the Trett name has been retained, not east, India, Africa, and Australia. For this, the fourth edition of the Driver Watson Burton, who provides a review ■ Avoid disputes by improving and increased our people count to around of where significant costs market leader.
■ It’s a Risky Business p13 ■ Turn to page 2 to find out more. for me personally, but as recognition of the hard work that all my colleagues David will be based in our Brisbane office and will spearhead the growth of Driver’s operations and ■ Q&A John Messenger P9 Trett Digest, we are again delighted to of potential insurance pitfalls for consult- project forecasts P9 350 as the planned development of the can be saved through high 2014 is another year in
put in over the 33 years together. It will be good to work with and meet old brands nationally including Driver Trett (contracts, advisory, and dispute resolution) and DIALeS (expert offer an eclectic mix of topics provided by ants and design and build contractors. ■ Float, float on... P11 business was delivered in each of our five quality project controls. which we plan to grow and
friends and colleagues, and to make new friends and colleagues. witness services). ■ Letters of intent P10 our global team and guest contributors. Just over one year ago we established regions – Africa, Americas, Asia Pacific, DIALES, our brand from develop our business to
■ What is coming over

Adjudication in Malaysia
around the globe. Please keep an eye
Our regional focus is on the Middle DIALES, Driver’s expert witness support Europe, and the Middle East. which we provide our high level delay and better serve our clients. Plans are in place
the horizon? P13
■ Insurance pitfalls P11 East (ME), with contributions from our service. We consider the rationale Over the course of the year we have quantum experts, is developing very well. to serve the public-private partnership
staff in Oman, UAE, and Qatar. To those behind it and the key importance of ■ Wait and see for EOT P14 opened offices in Australia (Brisbane We have some of the most renowned (PPP) and transaction advisory markets
In this issue...
Welcome to the Driver Trett Digest ■ Collapsed as-built - outside the ME region, attention is developing the next generation of ■ Back to basics – persuading and Perth), Germany (Munich), Hong experts in the industry working on many in America and Australia, and to enhance

welcome to the driver trett digest

– a practical view
■ Concurrent delay in Australia:
common sense or no undoubtedly centred on Qatar as host to experts. Our regular series of interviews the adjudicator P16 Kong, and Scotland (Aberdeen). We high profile matters. During the year, John our project controls offering, particularly
In this issue... The road to apportionment? P2
sense? P13 the FIFA World Cup in 2022 (well – for with key personnel continues with John ■ The changing approach also acquired the minority interests in Mullen co-authored a book on the matter to the oil and gas and the power and
■ A picture paints a thousand alastair Farr techniques in practice have moved on the moment at least!), and the massive Messenger, our managing director for to delay analysis P17 the Africa business which is now wholly entitled The Expert Witness in Construc- process sectors. As we enter new territo-
■ Common Sense in Delay
Paul Blackburn and is a welcome addition to the team. words – the use of BIM in dispute Asia Pacific issue – Technical and whether the protocol is still valid ■ You have got to have faith infrastructure programme to support the Africa region, with his thoughts on ■ Playing on the wing P20 owned by the Group. Alongside these tion and he joins Peter Davison and ries, we will develop our project manage-
Analysis P2 UK issue – technical editor Talking of the team we have an ‘Interview resolution P3 editor against this backdrop. Is it time for an the tournament, which alone is expected are well served with a diverse range of Driver Group Africa’s activities and the office openings has been the recruitment Stephen Lowsley as co-authors of Evalu- ment business in the Middle East, while
P16 ■ Focus on...Africa P22
with a Mediator’; our very own Mark ■ Nipping it in the bud – Early
update I wonder? Any views on this to be worth in excess of US$150bn. We articles including the potential issues region as a whole. of highly skilled, experienced, and moti- ating Contract Claims (with John Mullen) continuing to support the development
■ The importance of project ■ The importance of good

on the website www.driver-group.com

By Alastair Farr – Managing non-payment in the construction industry. Welcome to the second issue of the Wheeler – managing director for Europe, Neutral Evaluation P5 I am delighted to welcome you to the would be welcomed. examine the difficulties facing Qatar in with letters of intent, a look at conditions Finally, after a bombardment of vated directors and senior staff who are and About Time respectively. In the near of our traditional Driver Trett business,
■ Time bars in FIDIC P17
Director Asia Pacific Cash flow is the lifeblood of the construc- controls P4–P6 Driver Trett Digest. As promised in the who gives an interesting insight into the third edition of the Driver Trett Digest, And whilst on the subject of delay meeting the deadline precedent or ‘time bars’ in construction information and opinion we move from practical programme adding greatly to the strength and depth future, David Bordoli’s co-authored particularly in the new offices in Australia,
■ Baseline planned programme management P23
tion industry and it was thought necessary November edition, this issue has a world of mediation. where we turn our focus once more analysis, expert delay analyst Clive In addition, Rachel Larkin of Pinsent contracts, and consideration of what construction to cookery with a light- that we have available. Handbook for Construction Planning and Germany, and Hong Kong.
■ Contract Termination P9 faults P6 ■ Focus on... Middle East
Adjudication and payment legislation is to introduce legislation to protect it. distinctive UK focus; with a little bit of Finally, and to show that the UK has to the Asia Pacific region with articles Holloway, in our Singapore office, Masons and our Dubai-based quantum the NEC3 form of contract really means hearted view of my gastronomic experi- ■ Key success factors for Our network of offices and highly Scheduling will also be available (see this We hope that you will find this fifth
P20
imminent in Malaysia in the form of the Adjudication provides a quick and ■ UK Property Development Europe and International thrown in for not forgotten its overseas colleagues, we ■ The new CIOB contract for use from our staff in Singapore, Malaysia, looks at the effectiveness of baseline expert Paul Taplin analyse the proposed by a ‘spirit of mutual trust and coopera- ences during a lifetime of working across PPP projects P23 regarded staff now truly provide a global month’s competition for more details on edition of the Driver Trett Digest to be
Construction Industry Payment and Adju- inexpensive means of resolving a dispute, good measure (we do not want anyone have an interview with Martin Woodall with complex projects P7 and Australia offices. We also feature programmes and provides two case Q-Construct scheme intended to deal tion’. Our range of contractual articles the globe. platform from which to serve our clients P.32). These, and our other experts, are an interesting read; and would welcome
Finance P10 ■ Hot claims and haute ■ The demand for managed
dication Act (CIPA). This article discusses certainly compared to arbitration or litiga- feeling left out). This theme will continue – managing director for the Americas; ■ Q&A: Alastair Farr P9 the recent opening of our Driver Trett studies for the preparation of delay, with the disputes that may arise on such is completed by another guest, John My thanks go to those who have project services P25 anywhere in the world. currently acting on appointments ranging your feedback and requests for topics you
cuisine P21
ways in which statutory adjudication may tion. It allows the claimant to get a tempo- ■ Performance Bonds P12 for future copies of the Digest, with all along with a number of other pieces that office in Brisbane, our third new office prolongation, and disruption claims. an ambitious programme. Denis-Smith of Thirty Nine Essex Street, contributed to this issue and in particular A sector upon which we have focused from airports, high rise developments, would like us to cover in our next instal-
■ Going, going, gone! Expert ■ Sub-Saharan Africa's
work for you. What is it actually likely rarily binding and enforceable decision. our global regions getting the chance to we are sure will have something to tempt in six months; and the appointment of Guest writers are always welcome Oman also continues to develop infra- who addresses and explores the conse- our guests Rachel Larkin, Sarah Wilson, during the year is the oil and gas market; oil and gas, pipelines, power plants, ment. Thanks go, as always, to the writers
immunity after Jones v Kaney P10 ■ Oman forecast increased 'hotspots', 'warm spots'
to mean to the users of adjudication, Although these can be opened up and ■ Offshore Installation further explore and explain how they gas sector (opening an office in Aberdeen all our readers including some topical our new national director for Australia, Methods of preventing or resolving and this edition is no exception. We’re structure and promote itself as a premier quences of claims in tort. and John Denis-Smith. which we can serve well with our project process plants, and infrastructure projects who have contributed to this issue, in
■ Case study: Airport works P12 hotel sector growth P22 and 'bubbling spots' P26
whether contractors, sub-contractors, retried by the high court or in arbitration, Delays P14 support engineering and construction was a bit of a clue!). articles on delays and termination, David Hardiman. disputes are many and varied; we pleased to include articles from Barrister tourist destination. We consider Oman’s For those with an interest in ‘the dark As always, if you have an article you services offering and dispute avoidance throughout the world. particular our guest writers from outside

to keep up to date with ad hoc articles,

owners, or legal representatives? our experience in the UK is that in the vast projects around the world. Not content with opening a new words of wisdom from Driver’s DIALES Rest assured, for those outside of examine the use of early neutral evalua- Charles Pimlott on global claims and hotel development programme in addi- arts’, as delay analysis is often viewed wish to contribute, have any comments, ■ The need for a new consultants from our network of offices Driver Trett continues to increase its of the Driver Group.
■ When will global claims succeed? P13
■ Supply Chain Cash Flow The UK focus includes a nod towards office, which is a major event given the experts and the Corporate Services team, the APAC region, there is plenty of tion as an effective means of preventing Architect Katerina Hoey on expert ■ Getting on track - tion to an overview of the GCC rail project. by the uninitiated, we provide articles or wish to see any particular topics in approach to construction across the strategic locations of Aber- reputation for high quality dispute reso- I would like to take this opportunity
Adjudication was first introduced into majority of cases the parties accept the
the opening of our new Aberdeen office, current depressed state of the construc- and the introduction of Digest Bytes –
■ An overview of the Construction
interesting content to satisfy your other disputes. Separately, we consider witness immunity. Both are very topical The GCC rail network P23 Alongside our regional focus, on Collapsed/As-built delay analysis further editions please contact us at risk management P27 deen, Brisbane, Kuala Lumpur, Houston, lution advice and management across all to thank all of our clients for repeatedly
law in the UK 14 years ago. Since then it decision as binding and do not reopen Risks P16
Industry Payment & Adjudication

WIN
has been introduced in various forms by them, even where there are large disputes. with Richard Burke contributing two arti- tion industry, Driver have opened two! snippets of previously published articles regional interests. whether arbitration might be a preferred subjects at the moment worldwide. global and contractual interests together with case studies involving rail [email protected]. ■ Adjudication – The South Oman, Qatar, Singapore, and the UAE as forms of engineering and construction trusting us with their business and wish

COMPETITION
Act 2012 P15
■ Severance in Adjudication P18 cles on current topical subjects; delays, More details of the new Germany office, that you can download from our website. Keeping pace with worldwide changes dispute resolution option in Asia. I should mention that If you have an African experience P29 well as in the oil fields in Africa from our schemes and is now, judging by the blue you all the best for 2014.
other countries: Northern Ireland 1999, Isle There have been a number of cases in
and protecting investment. Having caught in Munich, can be found within. I hope you enjoy this issue ■ Ten years of the SCL delay is an important part of our business, in The Society of Construction Law's article you wish to contribute or any

WIN
of Man 2004, various territories of Australia the UK where the losing party has gone
Until 2010, the 'eye on Malaysia' was one of Kuala lumpur's major attractions.
■ Analysis of Delay – Audit of
the writing bug from the first two articles, Driver are also delighted to announce and  encourage you to contact and disruption protocol P18
this issue we look at the use of BIM in Delay and Disruption Protocol, which feedback you’d like to give on articles
...a copy of COMPETITION
The Expert Witness in Construction
(New South Wales 2000, Queensland 2004, to court to try to resist the enforcement
Time P20 ...a copy of
he has also provided a fascinating piece that Roger Trett (founder of the recently [email protected] with any dispute resolution, the newly launched originated in the UK, is commonly cited you’ve read, please do write to us at
Cash flow is the lifeblood of the construction Western Australia 2005), New Zealand 2003, of a decision but in the majority of cases ■ Case study: LNG Facility P20
and Singapore 2005. the court has upheld the adjudicator’s ■ Interviews P3 and P15
on the use and abuse of performance acquired Trett Consulting) has joined the comments, article ideas, or submissions
■ International construction
CIOB contract for complex projects, by those dealing retrospectively with the [email protected]. Handbook for Construction Planning and Scheduling
co-authored by Driver's DIALES expert John Mullen. Published August 2013
industry and it was thought necessary to The background to adjudication in all decision and enforced it even where the bonds. Responsible for our Aberdeen Group to help us achieve the ambitious you would like to see in the next edition. arbitration in Asia: The preferred and the new adjudication legislation often thorny issue of delay. Now with It’s often said that variety is the spice Co-authored by Driver’s David Bordoli. Published Spring 2014

Digest previews, seminars and training

of these countries has been the desire to office, you may have guessed that goals we have set for 2013. Roger is well All in all a varied and topical Digest – ‘CIPAA’, which will soon come into force the protocol in its 11th year, Stephen of life and this issue is no exception. SEE PAGE 24 FOR DETAILS
■ Digest Bytes P24 SEE PAGE 32 FOR DETAILS
introduce legislation to protect it.
option P21
tackle the issue of delayed payment and ■ Continued on pages 3 & 4. Richard is heavily involved in the oil and known in the field of dispute resolution read on. in Malaysia. Lowsley considers how delay analysis I hope you enjoy reading it.

For More inForMAtion visit www.drivertrett.coM or eMAil [email protected] For more inFormation visit www.drivertrett.com or email [email protected] For more inFormation visit www.drivertrett.com or email [email protected] FOR MORE INFORMATION VISIT WWW.DRIVERTRETT.COM OR EMAIL [email protected] FOR MORE INFORMATION VISIT WWW.DRIVERTRETT.COM OR EMAIL [email protected]

events. The Digest will always aim to be

DIGEST DIGEST DIGEST DIGEST DIGEST
THE

THE

THE

THE

THE
Issue 6 | June 2014 Issue 7 | September 2014 Issue 8 | February 2015 Issue 9 | June 2015 Issue 10 | September 2015
topical and respond to requests and
I am always amazed NEC3 arrives Driver Trett Driving Growth Experts and questions from our readers through
at the results that
can be achieved
when the correct
in Hong Kong. in Europe in Africa expertise
the articles we publish. If you would
mix of knowledge,
experience,
coordination, and Are you ready? Driver Group Africa
enthusiasm are expands its footprint
brought together.
in South Africa
like to submit a question or an article
DIALES EXPERT DAVID WILEMAN DISCUSSES
PLANNING, SHIPBUILDING, AND ONE DIRECTION
CONCERTS Q&A, PAGE 2

request to the Digest team please

email [email protected] with
DIGEST in the email subject line. We
DIGEST are always pleased to receive feedback
THE

Issue 11 | March 2016 Issue 12 | September 2016 Issue 13 |March 2017 Issue 14 | September 2017 Issue 15 | March 2018

Commercial Adjudication,
Arbitration and Contracts, from our readers and welcome the
mediation: above all ...
Claims
opportunity to develop the Driver Trett
$100m disputes
Avoidance
resolved in minutes...?
and Costs
Digest into a valuable read for those
involved in the global engineering and
Aristotle,
bullets, and FOUR DECADES OF
CONSTRUCTION,
construction industry.
cars that fly. CONSULTING AND
CONTRACTS

CONTACT DRIVER TRETT WORLDWIDE

AFRICA AMERICAS ASIA PACIFIC EUROPE MIDDLE EAST
SOUTH AFRICA CANADA AUSTRALIA FRANCE Liverpool KUWAIT
Johannesburg Calgary Brisbane Tel: +33 1 73 79 58 68 Tel: +44 151 665 0665 Tel: +965 5501 5657
Tel: +27 11 315 9913 Tel: +1 587 952 6228 Tel: +61 7 3011 6302
GERMANY London OMAN
Toronto Perth Tel: +49 89 208 039 535 Tel: +44 20 7377 0005 Tel: +968 2 461 3361
Tel: +1 905 247 0160 Tel: +61 8 6316 4573
THE NETHERLANDS Reading QATAR
Vancouver Sydney Tel: +31 113 246 400 Tel: +44 1189 311 684 Tel: +974 4 435 8663
Tel: +1 604 692 1151 Tel: +61 2 9248 0100
UNITED KINGDOM Teesside UNITED ARAB EMIRATES
UNITED STATES HONG KONG Bristol Tel: +44 1740 665 466 Abu Dhabi
Washington Tel: +852 3460 7900 Tel: +44 1454 275 010 Tel: +971 2 4410 112
Tel: +1 202 434 8745
MALAYSIA Coventry Dubai
Tel: +603 2273 8098 Tel: +44 2476 697 977 Tel: +971 4 453 9031

SINGAPORE Glasgow
Tel: +65 6226 4317 Tel: +44 141 442 0300

Haslingden
Tel: +44 1706 223 999

FOR MORE INFORMATION VISIT WWW.DRIVERTRETT.COM OR EMAIL [email protected]

41
JACOB’S LADDER
Design and Production: Gerry Judah
Engineering: Diales Technical
Photography: David Hartley-Mitchell