#Prospective vs retrospective driver

The Northern Irish courts did consider a quantum case in 2017, Northern Ireland Housing Executive v Healthy Buildings (Ireland) Limited considering whether cost compensation events should be assessed on a retrospective or prospective basis after the effect is known. However, with respect to my dissertation help was on hand. Though it is arguable that a retrospective analysis conflicts with the terms of NEC the bargain into which the Parties entered. The Protocol recognises that post-completion effect and cause methods of analysis (retrospective methods) are generally considered to be more forensically reliable because they consider “any and all” potential causes of the delay incurred. Therefore, is such an analysis valid after the actual effects are known when viewed under the microscope of putting a party back to the same position had the wrong not occurred? The Protocol sets out that a prospective delay analysis identifies the likely impact of historical progress or delay events of a completion date and it recognises that the conclusions of a prospective delay analysis may not match the as-built programme. With the footwork of Fred Astaire, the 2nd Edition has now adjusted its stance to say that a prospective analysis after the events are concluded may no longer be appropriate.

The Prospective time impact analysis was championed by the 1st Edition of the Society of Construction Law Delay and Disruption Protocol. The Protocol - Prospective vs Retrospective Methods of Analysis The method of delay analysis described by NEC is consistent with a time impact analysis which requires updating the programme to the point in time at which a delay event occurs but does not address what happens for the remainder of the Project. A prospective delay analysis produces a forecast of the likely effect of an event that may not be consistent with what occurs. This presupposes knowledge of the actual loss or actual delay. Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 found that an injured party should be placed “…in the same position as he would have been in if he had not sustained the wrong for which he is now getting compensation or reparation” (not a better position). The key word being “intentions” as the NEC does not offer an alternative method of assessment after the effects of the event are known or when the contract is complete. The contract specifies contemporaneous prospective analysis of delay to establish an EOT entitlement. The basics are that the intentions of the NEC3 (and NEC4) require the settlement of variations, employer risk events and minor breaches, known as compensation events, as and when they occur.

My name would then become a thing of folklore and I would be celebrated up and down the land. The intention for my research was to finally clarify whether a prospective or retrospective delay analysis should be used when the facts are known. However, when assessing delay after the effects of an event are known, such a prospective approach fails to consider what occurred as a matter of fact and is arguably in conflict with longstanding common law principles. The NEC suite of contracts promote the use of prospective delay analysis to demonstrate an extension of time entitlement. With a dollop of enthusiasm and more than a pinch of optimism, I recently considered post-completion/time distant delay analysis under an NEC type contract as the subject of my Construction Law MSc dissertation.

#Prospective vs retrospective driver

NEC Post-Completion Delay Analysis: Prospective vs Retrospective David Bunn, Planner, Driver Trett UK asks whether prospective or retrospective delay analysis should be used when the facts are known? Introduction