EP 59

Episode 59 - A construction lawyers guide to proving delays



In this episode, Paul is joined by Michael Downes, a Solicitor/Construction Expert at Gordons LLP, a law firm from Yorkshire. In this conversation, Paul and Micheal discuss how you can prove a delay has occurred on a construction project. The best way to give notice, request an extension of time and the dream pack of information a lawyer believes you need to help you win your argument.

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Paul Heming: Hello and welcome to episode 59 of own the build with me, Paul Heming. Today’s episode, the title of it is quite interesting, I think it’s something that I spent a lot of time pondering and trying to answer the question when I was a QS commercial manager back in the day. So it’s how do you prove delay on your construction project. And like I say it is a task that on the last project I worked on actually Battersea Power Station it was a thankless task, to be honest with you on that one and it was a project where this topic is very close to my heart. It’s a really difficult topic so I’m pleased to welcome onto the show a genuine expert, Michael Downes, who is a solicitor/construction expert at Gordons LLP, a law firm from Yorkshire. He’s going to help us solve the question. So welcome to the show, Michael. How you doing?       

Michael Downes: I’m not too bad, Paul. How are you?

Paul Heming:  I’m good mate. I’m good. I’m feeling pretty good about this episode apart from one nagging issue that I have in the back of my mind, so I know that you’re in Yorkshire, Michael but I know that you’re not from Yorkshire originally, are you?

Michael Downes: No, I’m originally from Birmingham.

 Paul Heming: Yeah, and North Birmingham as well as [Inaudible 00:01:46]

Michael Downes: Absolutely. I was wondering how long it would be before you bought this up into the podcast but I thought we’d get past a couple of minutes at least.

Paul Heming: Straight to it. I don’t talk about football often on this and that’s largely because I’m a Birmingham City fan and we don’t talk about football because we’re Birmingham fans there’s not much to brag about, but I’ve gone against everything that I stand for her by invited you onto the show an Aston Villa fan, Liam would be absolutely distraught with all this as am I but you bet this is going to be good, Michael, I’m sure.

Michael Downes: Absolutely. Well, the minute things are going well for us, so I’ll leave it there and won’t say too much. But yeah, it’s a bright brave for a Birmingham City fan to get an Aston Villa fan at this time I think.

Paul Heming: Here we are though. So anyway, let’s scrap the football to one side for the minute it’s definitely from my side. Let’s talk about construction. Before we get into the topic of today’s conversation, introduce us to yourself, what you do, and your experience, Mic.

Michael Downes: Well, I say you’ve already given me quite a kind intro there. I’m a construction solicitor working for Gordons LLP, we’re an all-service commercial law firm set with two offices, one in Leeds, one in Bradford and our role is to really service our construction clients and that can be anything from employers to main contractors, subcontractors to assist with any issues they can have in relation to setting up contracts, managing the contracts and the projects as they’re going. And then as is always the case, and probably what we’re going to get into a little bit on this podcast, dealing with all of the problems and issues and disputes that happen which typically happen towards the end of the project and when things get a little bit messy. And that tends to be where I kind of come into things a little bit more, my focus is a lot more on the dispute side of things and resolving those nasty problems that can typically crop up.

Paul Heming: That I’m sure almost every single one of the listeners can pass their mind back to a project, to a contract, to a client that they worked with where things perhaps didn’t quite go to plan and with the best will in the world ended up not necessarily in a legal dispute, whether it be adjudication, arbitration, whatever, but actually just in a position where there was a lot of friction, and then perhaps where there was more legal involvement, but tell me, Michael, I’m interested as to obviously you trained in law, what was it that drew you into the construction industry?

Michael Downes: Well, to be honest with you, you sort of go into the law because I did it as a degree and enjoyed it and enjoyed the sort of the work and the cases,  I think you always have a bit of an idea in your head as to broadly what kind of lawyer you want to be. I kind of kept my options open really and started my training contracts and heavily got involved with quite a lot of just general dispute commercial litigation, commercial dispute work. When I qualified, I qualified within my previous firm, I qualified into their commercial litigation team. As a result of that, we managed to get a few disputes that were construction-related, loosely related, it was mainly acting on behalf of subcontractors and just general debt claims that have escalated into something a little bit more serious. And it just so happened, I worked on a few of those really enjoyed it liked the sort of nitty-gritty of it, and getting stuck in the kind of niche area of the world it sort of got its own dispute resolution mechanisms and really enjoyed it. So when I joined Gordons back in 2015, I sort of joined and went into their construction department, my previous firm didn’t have a construction team, so I went in there to pretty much deal with construction disputes, and then kind of spans out to become the all-encompassing world of construction law.

Paul Heming: And so you’re a big fan of construction… 

Michael Downes: I think ever since from joining that and getting involved in it, it quickly became clear that I was never going to do anything else and this is where I wanted my career to go. So, I think you could say I’m a big fan of the construction side of things.

Paul Heming: Excellent. I like that we like big fans of the construction industry and the build, we really do.  Now I ask every guest, some of them QSs, some property developers, architects, et cetera you’re the first construction lawyer that I have had on the show and I want to ask you this question. What is the one common myth about your profession that you would like to debunk for us today? Is that lawyers are all nice guys that feel a fan some of them can be all right. 

Michael Downes: It’s certainly not that.

Paul Heming: It’s definitely not.

Michael Downes: It’s got to be the common misconception I will say that all lawyers are out there to take your money, they’re expensive, they should be avoided at all costs, and are only there to send over those big bills. And, I think that’s probably the one biggest misconception about our industry, and I think, first of all, notwithstanding, you know, if you’re getting a bill on your desk from a lawyer, that you’re not expecting, something’s gone seriously wrong, somewhere along the line, and you to be speaking to them, but I think it’s more a case of the difference between your standard lawyer and a really good lawyer that is worth its weight and worth the money is the ability to think emotionally and work with you as a client and get to know your business, get to know the industry well. So the advice isn’t just a case of its straightforward legal advice. It’s legal advice it’s tailored to you as the company. And I think that’s really where we try to aim ourselves, we see ourselves as commercial lawyers that gets to know their clients, you know, we like face-to-face meetings, we like to sit down with clients and offer that extra bit of assistance and…

Paul Heming: Arm around the shoulder and guidance, really.

Michael Downes: Absolutely, and that’s what it’s all about. And, I think that’s probably the biggest misconception about good solicitors. A good solicitor you should be happy to pay that bill when it lands on the desk and feel that you’ve got a good value of service. Absolutely.

Paul Heming: And so what I’ve understood and we’re just about to start the show is clear. A good solicitor is not there just to pilfer money out of your pocket, they are value adds absolutely. We’re still unsure about Villa fans because we didn’t quite tackle that, then we’ll put that to one side.

Michael Downes: On my normal advice would be steer clear of the villa fans, you know, they clearly don’t…

Paul Heming: All that [unintelligible 00:08:58] 

Michael Downes: Clearly something wrong with them. 

Paul Heming: But we’ve agreed on something there, Michael, brilliant move we will caption that avoid that offense. Anyway, let’s get to the topic now, right. I’ve got to stop dwelling on this but we are here today to talk about delay. I wondered up to this morning, aside from payments and disputes around being paid or not being paid is delay. The second biggest reason there’s a construction dispute I imagined payment is first, is that wrong? 

Michael Downes: I mean, where the money is and people chasing money always tends to be the heart of what everybody wants to tend to dispute over but yeah, I would say delay is one of the most common things that we would have come across our desk. And I would say that the reason it comes across our desk is probably why we’re talking about it today and for some of the reasons we’ll go into is because it’s such a problematic area, and it’s sort of fraught with difficulties and issues and is often very hard to prove if you haven’t got the right necessary things in place. I mean, it’s the very concept of delays, almost subjective anyway, it’s kind of what caused the delays is not necessarily black and white. And that’s why there is always, or there’s not very often agreement over the true cause of delay and…

Paul Heming: Two or three reasons why and it’s what is the prevailing reason, et cetera but that’s really interesting almost talking about the lack of clarity in the events. But one thing I think we can be black and white on is, what is the definition of delay? What is delay in a construction contract to you?

Michael Downes: Well, I think delay, in essence, is the program hasn’t gone as planned, it’s somewhere along the line, something has happened, that’s prevented an activity or a sequence of activities from happening in the order or within the time that they should have done doesn’t necessarily mean that the completion date is delayed, not always, but we’re sure we’ll come on to that but it’s in effect, something along the way of the program has gone awry, which is mean, something has not been completed at the time that it should have done.

Paul Heming: Because, again, and this is where it start to get into the complications and the nuance, right. So you’re talking about you mentioned there, a delay that might not impact the completion date but it’s a delay along the way, right. So I think what you’re describing there is kind of the difference between delay and disruption and then extensions of time, because extension of time being what would delay the end date, but delay and disruption is something that can impact you along the way, but perhaps doesn’t impact the end date. But can we talk about that a little bit more, and you can explain it in a far more brilliant way that I can [Inaudible 00:12:03]

Michael Downes: You’re absolutely right, it’s in essence this whole question and this whole concept of time versus money. If we touch upon extensions of time extension of time is a mechanism within a contract within a construction contract, where you’ve got to effectively demonstrate critical delay. Now, that is a delay to the completion date. So you know, that’s the type of event where something has happened, that has had a knock-on effect or has prevented a critical event from happening within the sequence of the project.

Paul Heming: So for example, you mentioned critical delay and critical being the salient word there, right I’m going to go back to my experience, I was always in curtain walling and cladding, right? So a critical delay to what us as I would see it, is, we need a concrete slab to be able to hang our curtain walling and facade on, if the concrete slab isn’t handled over on day X is handled over 10 days later, that would be a critical delay to the my completion date, I guess, right?

Michael Downes: To the completion date of your works absolutely. I mean, that’s a great example. And those kinds of things are the kinds of things that you always typically see as events and activities that are critical to the completion being completed on site. That’s the critical element, it affects the completion of the subcontractor’s works, or if we’re looking at the project as a whole, the completion of the main contractors.

Paul Heming: Critical delay is something that I can claim an extension of time for?

Michael Downes: Exactly provided and this is where it sort of comes to the same [Inaudible 00:13:51] Provided you can demonstrate that if we’re talking about us, as the contractor in this scenario, provided you can demonstrate the cause of the critical delay is not the fault of the contractor and is covered by the contract between the parties as a cause of delay that entitles them to an extension of time.

Paul Heming: So going back to my example. So again, this is on the actual subcontractor in this example, there is a main contractor, the main contractor is due to provide me with the concrete slab on the first of January for the sake of the discussion they provide it on the 10th of January, obviously, the 1st of January, I have no control over the concrete slab that is someone else’s works. So that would be a critical delay, because there’s nothing I can do to foresee that, right?

Michael Downes: Exactly in that in that scenario you’ve been prevented from your client being provided with materials that you need, and are critical for you to be able to carry out the work that you need to do. You cannot progress those works and say if your works are going to take 10 days, the 10 days from when you have that concrete, so if you don’t get the concrete until the 10th of January, you’ve had nine days delay there, it’s still going to take you 10 days to do the work, it means it’s going to be finished on the 20th of January instead of the 11th of January. I think that’s the math, isn’t it? 

Paul Heming: Okay. Yeah, just about we got there. I think this would be resonate so I want to put critical delay and extensions of time into one box that we’ve dealt with, so delay and disruption that would be non-critical delay, or is there another level?

Michael Downes: Exactly, I mean, delay and disruption under the JCT often see it as loss and expense, it’s the cost to the delight. Now the JCT works in a way where I think it’s good to use the JCT as an example, it’s always one that’s a template contract…

Paul Heming: It’s a state policing [Inaudible 00:15:52].

Michael Downes: Exactly, and the way that works, it deals with two things irrelevant events and relevant matters. Irrelevant event occurs, it can lead to you getting an extension of time, which is what we’ve just talked about. If a relevant matter occurs, that can lead to you getting loss and expense, i.e. your delay and disruption costs. Now, it doesn’t necessarily need to be that something has occurred that has caused the completion date to push back, and we didn’t take you to an extension of time. It’s just this is something where something has happened in the course of the project that has caused disruption to the contractors’ works, that isn’t entitled them by virtue of the contractual provisions to be paid for that disruption. So that’s those kinds of delays so it doesn’t necessarily need to be them that, you don’t need to demonstrate that that’s going to push back the completion date, you need to demonstrate there that there has been some disruption to your works that has caused you a loss.

Paul Heming: So I’m trying to think of an example, than going back to almost the one that we were just talking about with the critical delay, just so you can picture it almost. So let’s say that the concrete slab was handed over to me on the first of January but the reality was that there was a few backdrops still in place, which meant that for us to finish our work, it didn’t take nine days, it took 10 days because it was a bit more awkward for us to get our panels through, let’s say another [unintelligible 00:17:23] technical thing to picture but where it didn’t delay us grossly but it did just impact to the way that we were working and made it instead of 10 days took 11 days.

Michael Downes: If that was through a fault of the employer because it has taken longer than you would have originally planned, then that specific scenario would still potentially get you an extension of time, or be it it’s a much shorter extension of time. A delay and disruption claim where it hasn’t necessarily caused the delay to the completion date would be something I don’t know, say if you are using the similar example, maybe they fit the cladding they provide you with some platform, so they agreed to provide some platforms for you, you get there on day one or just before you about to start and these platforms aren’t there, they’re not going to be available to you meaning you have to go away source these platforms spend money on some your own platforms and you then have to get a few more men on-site to do the job a little bit quicker than you ordinarily would have done but you still finished by the 10th of January. There’s no delay to your works there but it’s probably cost you an extra 10% the amount that you would have ordinarily charged because you’ve had some additional costs on the way that’s the disruption to your works that has resulted in an additional loss to you that you would be entitled to claim provided the contract works in your favor.

Paul Heming: It is, you have to admit Michael even just talking about it now, and I’ve had a lot of experience in it or be it not recently obviously, I have been on projects personally for five or six years now but it’s something I always spend a huge amount of time dealing with even just talking about it now this is why we need lawyers and extra to kind of debunk it to some degree because it isn’t simple and there’s a lot of jargon a lot of phraseology, which isn’t commonly used on-site in project offices that people need to better understand in order to be able to manage their contracts and reduce their risk run.

Michael Downes: Exactly that and they are complicated these contracts, you know, we’re dealing with usually big projects, often 10s of millions of pounds. You know, a lot of people think they know the crux of it and new additions come out on most projects these contracts are amended via Chart of amendments of the…

Paul Heming: That you double the length of the original.

Michael Downes: Absolutely and you…

Paul Heming: Because of you guys.

Michael Downes: Because we’re dipping in and complicating matters, that’s what it is. But the crux of it, it is it isn’t uncommon for people that have been working with these contracts for years and years and years to, when you get down to these particular issues, particularly delay issues and particularly if they haven’t been involved with real delay problems before need to handhold them a little bit through the process and how it works, what you can claim what you can’t when you need to put a notice in when you don’t and that’s ultimately what we do and how we help out. So you can do that sort of as it happens, but we try to sort of encourage our clients to work with them a little at a much earlier stage, usually, hopefully, during the contract formation as well to kind of work with them and tell them and sort of get the practices in place so that they’re best suited to deal with these things.

Paul Heming: They actually execute it as planned and that segues us onto the exact question I want to ask you after this break. Michael, we’ve talked about what you want, and like we’ve talked about, in fact, we haven’t talked about what you want but we’ve talked about the foundations of delay in construction, pun intended, I’m going to take that, but as a lawyer, as a construction lawyer, you must constantly have clients reach out to say, this has happened on my job there’s been a delay, I’ve been completely screwed over by the client and this has happened and that has happened and you said, can you go on this let’s have a look at the documents then and you have a look at the documents and I imagine you probably go, you don’t say this but you must be pulling your hair out thinking [Inaudible 00:23:16]

Michael Downes: You don’t want it to be one of those situations but unfortunately, sometimes that happens and you think you’re right this is going to be a bit of a battle this one.

Paul Heming: Yeah, I can imagine. So what I want to kind of extract in the next stage of our conversation is what to you is the perfect packet of information on the topic of delay, a client comes to you as a delay has happened, what do you want to see, I guess?

Michael Downes: Well, I set when we talk about a pack of information, if we’re talking about the perfect pack I think, first of all, it’d be great if all of the information was in a nice, neat, zipped folder labeled often [Inaudible 00:24:05] all of that I mean, where I’m probably clutching at straws a little bit there but within that imaginary zip folder of documents, I would think there’s probably several sorts of headline things that you would love to see provided to you from a client. If we’re talking about a contractor has come to you with a delay that they’ve experienced on-site and they’ve put this to their employer and then the employers had to look at it the contract administrators had to look at it and it’s been knocked back for one reason or another. What would we want to see now, it would vary depending on the type of delay but very broadly, first of all, the first thing that you want to see there is the full contract. Now, you would usually think well, that’s straightforward, you know that’s just a case of just sending that over but you know, it’s particularly on smaller projects as well and everybody’s very good at getting the work, you know, construction industry, brilliant, that sort of networking, getting those jobs but you can, from time to time find that certain things just aren’t pieced together properly within the contract and there can be problems in terms of what is it exactly been incorporated into this contract, what are we required to do, which can have a knock-on effect on being able to claim delay, particularly if you think you’re not required to do something, but actually when you look at the contract there is an obligation to do something that you’ve that you’re saying it could potentially be a relevant event. So you’d want to see a full completed contract executed there absolutely. 

Michael Downes: Then I think you would want and this is where it comes into, specifically with delay claims a program not necessarily a program, maybe a number of program.

Paul Heming: [unintelligible 00:25:56] program you’d need that.

Michael Downes: Exactly you want what we always call or what you would say is a baseline program, sort of this is what the agreed sort of steps that should have been taken and if everything went perfectly and there was no problems on-site, which I’m yet to encounter one of those situations that’s how it would be done, that’s how it would be completed. That’s what the starting point, then how do we measure delay, you look at a baseline program, ideally, that baseline program would then be updated throughout the course of the project regularly so as works are ongoing, and as particular activities are being completed, we’re tracking when those activities are actually taking place so that really forms what you would then call the as-built program that the program that demonstrates how things have actually turned out. And you only get that if you do properly update that as you go through the job. You know, that’s probably the one thing that you see more than not is that the program hasn’t been updated, you know, again, it’s an administrative task, that’s a pain for any contractors or subcontractors or anybody to really do to properly manage that and the real focus on…

Paul Heming: It requires discipline.

Michael Downes: Exactly and the real focus on the ground is always let’s just get the job done that’s everybody’s number one sort of aim on this on these projects and it only really comes into play when something goes wrong, where you want to actually look at how things have developed. So it understandably gets forgotten and then you would want probably to see an impacted program, which is demonstrating how the delayed event that you’re complaining about has impacts the remaining work still left to complete. So, we are looking at an instance where it’s an extension of time, you can see how the completion date is being pushed back and how one activity is affecting the next. So programs are really key and important in delay claims and that’s kind of in an ideal world what you want to see that I think it then comes on to the notices.

Paul Heming: [unintelligible 00:28:15] guys, there’s more these lawyers, they want everything.

Michael Downes: You asked me for my perfect pack of…

Paul Heming: [Inaudible 00:28:21] I’m joking.

Michael Downes: Yeah, you notice, there’s obviously a requirement within most standard construction contracts, you know, JCT and NEC contracts both provide for early notification of any event that you consider to be a delay event so you’d like to see…

Paul Heming: So, just going back to my example, sorry to jump over there, because notices can come in many different guises currently, I’m going to take us back to my projects, where it’s the 25th of December, I’m working on Christmas Day, and I’m walking past the side and I’m thinking, I’m going to be starting the curtain wall on the first of January, but there is no concrete slab. What should I do? What does a notice look like?

Michael Downes: In terms of what a notice looks like there’s not necessarily a prescribed format, as to what accurate flags look like, in essence, I mean, I’ve not seen that yet, but I think it’s more of what should the notice contain and because a lot of people kind of think sometimes we haven’t given notice, you know, we did it to retrospectively and then you look for the email correspondence and you think well hang on a minute your emails, and when you’re…

Paul Heming: Complaining about it there.

Michael Downes: Yeah, the complaint, you’re ticking all the boxes, you’re saying all of the right things, and the contract certainly requires you to do that. So this could, in theory, be your notice, maybe what you’d like to see, and what we tend to work with is putting together sort of prescribed forms of notices, that create a bit of a discipline internally to ensure that look if we have…

Paul Heming: Which include.

Michael Downes: Exactly which can include you want to give notification if we’re looking at talking about a delay events that you think is causing an extension of time the JCT requires it to be written and given an early notification, as soon as you become reasonably aware that the completion date is going to be pushed back. 

Paul Heming: So in my example, would I just say to them, I’m a week in advance, takes a week or two to pour a slab would I just walk past the site and then go right, I’m going to go home, go to the office, write an email saying hello, it looks like the concrete slab is not going to be ready for a start date on the first of January as per our program we, therefore, think then may be a delay we’ll keep you updated, depending on when you hand it over to us.

Michael Downes: Exactly you want to be getting as much information in there as possible. So JCT is for going back to that they require if you also think that he’s going to cause cost and disruption or loss and expense there’s also a requirement within the JCT to give early notification of what you believe that cost would be. So what you want to be saying is that the earliest opportunity and I always say, look, it’s not a case of there being a singular notice of that’s the key notice that kind of triggers the ability to claim loss and expense and claim an extension of time, you want to be all over it, really, you want to be notifying them as quickly as possible, obviously, that this is an event that’s going to be causing this delay, this is going to cost us money it might even be the case, you don’t know fully how much money that’s going to be but as soon as you then…

Paul Heming: It’s going to be difficult.

Michael Downes: Exactly soon as you become aware, you want to be telling them again, if you think that the delays push back even further, you want to be telling them again, and it’s the more that you’re doing that and the more information you’re giving to the employer, the better protected, you’re going to be moving forward in terms of look we’ve done all we can here to kind of push this.

Paul Heming: We were always telling that that slab was going to cause a delay. I mean, they know it most of the time anyway, this is the frustration I think with a lot of construction people you see well, it’s obvious if you don’t give curtain wall contractor the slab, he’s not going to be able to continue so why the need for the notice? But that’s what the contract says and that’s what, in your perfect back you want to see. Well, it said we’re going to get on the first January, you didn’t get it, did you tell them it cost money? I think that is sometimes the penny drop moment for some people is that it’s almost just these are things you have to do, as a matter of fact, if you want to get the money, it’s not overly complicated to do it, it’s just habitual, isn’t it? It’s creating that habit.

Michael Downes: Exactly and, you know, it’s not uncommon for construction contracts to add more onerous provisions on what exactly notice…

Paul Heming: When the lawyers get hands on them.

Michael Downes: Exactly and sometimes it has to be sent to certain individuals, not just the contract administrator, sometimes the employer as well. Sometimes there’s a good reason for that it could be that, there’s an obligation that the employer has in a development agreement where, and they’ll want similar provisions down the chain, so they can meet their requirements at the chain. So there’s various reasons behind why that might get might get added in, which is why I think it’s always critical at the start of any project, to have a full contract review, to know exactly what your requirements are for whatever situation may arise and when you’ve got to do.

Paul Heming: Hundred percent, we used to do a contract audit, where we’d sit down as a team and say, Look, on this project, there are 10 Key handover dates, when we need to get the concrete slab handed over to us, that will then trigger our program, we need to know those dates off by heart and be informing when we’re not hitting them. If it’s not our fault, we’ve got to tell them, because that’s the only way we’re going to cover ourselves and that’s what we did, and then we, on top of that kind of built-in a weekly report, which would kind of take a photo of each area and that photo would say, this area isn’t ready, which we kind of reduces it like a secondary notification or the regularity or most of informing that this hasn’t happened, we need it to happen.

Michael Downes: That probably leads me quite nicely on to what was effectively the next item on what is it that…

Paul Heming: Sorry, yes go on.

Michael Downes: I mean, that’s absolutely you’re bank on it, it’s the evidence of the particular delayed event that you’re talking about and that really is where it’s what exactly would you expect to see as evidence, well, that completely depends on the delayed event, what exactly is it that you complain about, but that can consist of records, site diaries, updates, weekly updates, monthly updates, photographs on site, timesheets, all these things that can demonstrate that the actual delayed event that you’re complaining about one, has actually been caused, and it’s been caused not by you, but by the employer if you’re the contractor. Two, that the delayed event that you’re actually complaining about has affected the progress of the works as well and it’s compiling that sort of evidence, that’s probably the most difficult thing. Emails are always straightforward they’re great because they capture a point in time, if you get into the routine of writing this stuff down, sending an email, whenever there’s a particular issue on-site, following it up to the administrator or whoever it may be you’re creating a nice little chronology and a nice little bank of contemporaneous evidence that can just be pulled and searched through when if it comes to a situation where it’s gone legal, so to speak and we’re looking at it.

Paul Heming: Yeah, no, but I’m guessing that I’m asking you, what is the perfect packet of information that you would get if it had hit the fan, so to speak, and you’re getting called in at the end. But I’m guessing you’re also advising clients at the start of contracts where they’re getting into these challenging contracts and you’re saying.

Michael Downes: Absolutely yeah.

Paul Heming: What you need to do is always have your contract, have your baseline program, be aware of your baseline program, build [unintelligible 00:36:33] built program, an impacted program, your notices need to go in looking like this and you need to keep your evidence stored all in one place so that you don’t have to call me at the end of this job when it has all hit the fan because…

Michael Downes: Absolutely, that’s the plan, that’s the aim really.

Paul Heming: Yeah, because you know, it’s the last resort when you guys start to get involved and often, if you’re showing yourself regularly as someone who is diligently managing the contract, not necessarily in an aggressive way, just in the way that it tells you to manage it and you’re actually turning up to meetings with your client, where you’re saying, I’ve got my pack of information, and you know, I have, more often than not, they’re probably not going to want to get into a big fight with someone who’s prepared so I think it’s a two-way street as well, isn’t it helps you in the front end and at the end.

Michael Downes: Absolutely, yeah. If you’re doing those things we get involved with our clients, that we work with main contractors they’re brilliant doing this and we work with them to get the systems in place to make sure that we’re capturing this information, really, without even having to having to necessarily think about it, it becomes a part of how the project is managed. You capture this information you’re updating when works are being done, which is generating its own program and updating that as you’re going along like you said monthly updates, monthly reports, where photographs are capturing sort of how site progression is ongoing. Even if you don’t think at that stage isn’t necessarily any delay, if you get into that process of doing that when you look back at the evidence that’s been built, you’re creating a much stronger case in the event if something were to go wrong. And you’re right, in terms of the contractors that do that are much less attractive to go into formal litigation, whether or going to any real dispute resolution, they’re the ones that you want to be settling the cases against if whoever’s got the evidence in and whoever’s in the stronger position is immediately in the driving seat.

Paul Heming: And I want to that kind of brings me on nicely to my next question, I guess because I wanted to talk to you about prevention, really, and not getting into legal disputes, because you must be advising your clients on that as well. So how would you describe the best ways to avoid getting into disputes about delay?

Michael Downes: It’s exactly that what we’ve just spoken about. It’s the preparation and I would always think everyone would say, well, of course, you’re going to say that you’re the lawyer but getting the lawyer in at the earliest possibility, believe it or not, is probably the best way at saving legal costs because the earlier you get a lawyer in, particularly if it’s during the project, and during a particular problem, they can very quickly get things put in place to put you in a much better position. But I think in terms of prevention, it’s for the best will in the world with the greatest planning, litigation and disputes are a two-way street, you have no idea what your opposing number is going to want to do, or how reasonable they’re going to be but you can certainly take steps throughout the project, do those things that we’ve just been speaking about to put yourself in the best possible position to avoid those unnecessary disputes and I think just being commercial and being pragmatic as well, when you’re in a situation where it hasn’t not necessarily gone well, it’s opening your eyes to the risk and being pragmatic about where it’s a battle you don’t want to have, or it’s a commercial relationship you don’t want to lose, to start to think a little bit more sensibly about whether or not a dispute is really the route that you want to go down.

Paul Heming: It’s great you have put it into really simple terms, Michael, and I think for a lot of people listening, these will be things that they know, in many cases, but also that they probably know that they’re not doing as well as they could be doing because it’s hard to build the habit but if you’re building the habit around, here’s the contracts, what does the contract say about the program? Oh, that’s the baseline program let’s then make sure these are the key dates when we need to manage that program and we need to be aware of them need to be doing reports, site photos, whatever, and issuing notices, all of a sudden, whether you’re dealing with it commercially, ideally for the contractor, not for you, maybe Michael, but if then able to get through that delay commercially, that’s brilliant if not, and it goes to a more a legal dispute, let’s say, then you’re still in that really come that better position of having all of your ducks in a row, right? 

Michael Downes: Yeah, exactly that and look, I think it’s easy for a lawyer to sit there and say this is what we expect, what we want to see this, we want to see that and, you know sitting at our desks and having not been on the ground and really seen our these or been involved with how these things develop, you know, we’re more than aware that no contractor, no employer, no project is going to achieve perfection on those sides of things, you’re not, and you’re never going to get that perfect pack of information where you tick every single box but I think if you aim to tick as many of those boxes as you can and say I don’t know if you if you achieve 80% if a client comes to meet with 80% of that were in a fantastic position and I think that’s the reality about it, it’s balancing that need to actually do the job on the ground and work towards the number one priority, which is finishing the job and getting paid for it. And two end balancing that with the potential risk, which will be it may be small, of potential things that can go wrong so we better have various systems in place to make sure that we’re covering ourselves along the way and it’s making sure that you have those systems and you have those checks in place if they become a very non-costly and routine part of the job you’re almost doing it as you go along anyway.

Paul Heming: Yeah, you took a lot of sense, Michael and I think I have to take it back to what I said earlier about, about you being villa fan I can’t take it back for all Villa fans, but you I’m willing to make an exception for.

Michael Downes: That’s very kind coming from a from a Birmingham City fan I can tell you that. I don’t normally get that kind of [unintelligible 00:43:16] words from Bluenoses.

Paul Heming: It’s a one-time thing, but now it has been really brilliant to have you on the show, Michael, I feel loved and enjoying it. There’s loads of other things that we can cover and probably other interesting topics, which are worth having a conversation around so this may not be the last that you hear from Michael, everyone and thank you so much for coming on the show, mate.

Michael Downes: Absolutely I would love that and yeah, I’ve really enjoyed it has been a pleasure.

Paul Heming: So I will be putting Michael’s details, his company’s details in the podcast description so feel free to get in touch with Michael and for everybody listening, I’m going to be a bit of a noise now and just ask if you could give us a review and a rating on Apple that would be brilliant is really good for the algorithm helps us to keep doing what we’re doing and I will be back next week. Michael, I know it’s your birthday this weekend mate so have a good time, mate and I will speak to you soon I’m sure.

Michael Downes: Thank you very much. We’ll speak soon.


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