HT-2020-000448 - [2024] EWHC 1185 (TCC)

Given the task of detailed programme analysis undertaken by Mr Britton, TCS called Mr Anthony Morgan, a programming/delay analyst, to deal solely with the question of methodology. Notwithstanding his evident experience as an expert, Mr Morgan’s evidence was unimpressive and of little assistance to the Court. At the outset of his oral evidence, he appeared to dance around the obvious conclusion from his own report that Mr Britton had not, in his first report, carried out a recognisable as-planned v as-built analysis, which Mr Morgan had himself identified as the preferred methodology, at least in the construction and engineering industry, for analysing delays retrospectively. When questioned as to what ‘recognised practice’ he was satisfied that Mr Britton had carried out his method of analysis in accordance with, Mr Morgan asserted that it was a ‘Time Slice Analysis’. This, not mentioned anywhere in his report, was obviously wrong: a time slice analysis (as set out conveniently at paragraph 11.5 of the Second Edition of the SCL Protocol on Delay) is a method which determines the delay impact at each relevant point retrospectively – something that Mr Britton’s first report did not purport to do. This exchange led to Mr Morgan conceding that it is ‘possible’ that he had misunderstood what Mr Britton had done, which is somewhat astonishing given that the principal purpose of his report was to consider the appropriateness of Mr Britton’s methodology. I have not been able to place any weight on Mr Morgan’s evidence in my determination of the issues in this case.

DBS called Mr Scott Jardine, an experienced delay analyst who carried out an as-planned v as-built delay analysis. His conclusion supported DBS’s case that the critical path for the project ran through software development. I consider that he approached the task in his report with care and attention to detail, and also gave his answers in cross-examination with thought and, in my judgment, fairly. As will become clear, however, the cross-examination did expose areas where (to put it neutrally) a different view on where the critical path lay was both legitimate and, at some points, held contemporaneously. I have not, therefore, accepted all the conclusions Mr Jardine has reached even though I understand the reasonable justification for having advanced those conclusions in his reports.