Thought Leaders

Derek Nelson is a chartered quantity surveyor and a chartered engineering surveyor with 39 years of construction programming, cost and contract management experience. He is an accredited and certified expert witness; fellow of the Academy of Experts and the Royal Institution of Chartered Surveyors; and an accredited mediator and expert determiner. Derek authored chapter 17, “Disruption To Progress And Lost Productivity”, of Delay and Disruption in Construction Contracts (fifth edition, first supplement).
To what extent is the use of a project neutral prevalent in construction projects? What are the benefits?
Today the use of a project neutral internationally is increasing markedly, albeit not under that name.
My first experience of the process was when I assisted a mentor of mine, Peter MacGillivray, in that role, pre-statutory adjudication. Both parties to a dispute sought an independent opinion on several related issues on a project. Unbeknown to us at the time the parties had agreed to be bound by Peter’s opinion; that was not outlined in the tripartite agreement but underscored the level of confidence both had in the opinion of a respected independent and doyen of the profession. I took that experience with me when I moved to Asia and started to work on international projects shortly thereafter.
A project neutral, whilst sharing many of the attributes, is not an expert determiner in that the opinion rendered is not normally binding and enforceable. Initiated through joint appointment with both parties, the purpose is to assist the parties in avoiding or settling a potential formal dispute through the rigour of analysis and independence of opinion to allow the project to progress and/or complete.
That role and function is now being mirrored, to a large extent, in the formal procedures set out under FIDIC 2nd Edition contracts through the DAAB, Dispute Avoidance/Adjudication Board, procedure with an emphasis on dispute avoidance through a standing board.
The advent of statutory adjudication, in its various forms in different countries, may be seen to diminish the utility of the project neutral approach in those jurisdictions unless parties have a genuine incentive to engage in a collaborative solution; where that is the case it has much to recommend it.
What short and long-term affects do you see covid-19 having on the construction industry?
Covid-19 and the restrictions that come with operating on site through imposed social distancing are, as for all businesses, likely to be around until an effective vaccine can be rolled out.
For existing contracts, imposing that new operational requirement will clearly bring discussion around who bears the time and cost implications and what mitigation measure, if any, are available or to be deployed.
Couple that with the complete shutdown of work on site for a number of months and you have the requirement to start up, effectively, suspended projects and the additional cost and loss of productivity that entails together with training and familiarity in new requirements/procedures alongside what will be a lower productivity norm on the job as a consequence of those more restrictive social distancing or PPE operational requirements.
Working through those issues under differing legal implementation approaches adopted, even just within the UK, and contract structures applying to construction projects, coupled with the costs and losses arising in a sector renowned for low margins, is likely to see an increase in determinative dispute resolution.
For new projects going forward, the requirements to address the covid-19 new normal is likely to be written into the contract requirements and the risks/costs associated with that in terms of time and money attributed to one of the parties under the contract-as was seen immediately after SARS and MERS.
What do you think will be the greatest challenges facing construction experts over the next five years and how will you ensure you are prepared to face them?
Mastering increasingly large multisource datasets that are being generated on site and in connection with projects that form the contemporaneous factual project record will be a growing challenge for experts.
Today it is not uncommon to be presented with terabytes of unstructured data from clients or through disclosure; I have seen expert reports used as a strategic vehicle to introduce huge amounts of ‘new’ and unreferenced material at a late stage into a procedure. The expert opposite being left with a matter of weeks before the meeting of experts and response reports to somehow analyse, absorb and form an opinion around that material before being in a position to meaningfully engage with the other expert. Even if tribunals are sympathetic to the plight of the expert on the receiving end of that, procedural timetables and tribunal/party calendars are often such that there is little flexibility in adjusting submission deadlines.
Even without the abusive scenario above exacerbating the issue, the magnitude of project data, captured and communicated across multiple platforms and in varying media requires a full mastery and marshalling of that factual material in context and across the timeframe of the issues under discussion. Whilst there are many analytical tools that can assist in cutting across the volume of data and experts may use specialised assistants to narrow that material, the expert remains responsible for that structured analysis and the opinion proffered in respect of the outcome of the analysis and the issue in question. As such, it is important that the expert is familiar with how those tools operate, any issues or bias inherent in their application and how, or if, that may skew to outcome of those material searches/analysis — the expert cannot rely upon a black box approach of “the computer said” — that does not assist the tribunal and does not satisfy the remit of the expert.

Derek is a chartered quantity surveyor and chartered engineering surveyor, with over 35 years of construction and engineering experience. He has acted as expert on over 50 occasions in delay, disruption and quantum matters.

Derek has held senior commercial and contracts positions for major international contractors and owners across Asia, Europe and the Middle East. His expertise includes matters of quantity surveying practice, valuation, damages, contract administration, contract management, commercial management and cost management, which he combines with his tested planning and delay analysis capabilities.

In addition to his expert commissions, Derek continues to provide clients with contractual advice, claims preparation and contract administration services on major contracts worldwide. He specialises in the preparation, negotiation and settlement of claims, whether disruption, acceleration or prolongation. Derek delivers advice and procedures to rapidly resolve or avoid disputes in a cost-effective and timely manner.

Derek is both an accredited and certified expert witness, fellow and current chairman of the Academy of Experts and has acted as a delay and quantum expert witness in arbitration, conciliation, litigation and mediation and as an expert determiner. He has been cross-examined on over 10 occasions and has delivered concurrent evidence in disputes from Belize to Brunei and Scotland to Singapore. Alongside his work as an expert adviser for ongoing projects, Derek undertakes the role of "project neutral", independently reviewing international projects in preventative, on-the-job dispute resolution.

Aside from his extensive accreditations and wide experience, Derek is often called upon to deliver training and seminars on contractual problems, claims preparation, negotiation and dispute resolution. Derek contributed the chapter "Disruption to Progress and Lost Productivity" to Delay and Disruption in Construction Contracts (fifth edition, first supplement).

He has a strong reputation with peers and clients alike and is described as someone who "performs well in cross-examinations" and offers "professional and consistently high-quality work", while referred to as "usually the quickest to comprehend the crux of a matter and from there he offers and communicates the practical options or solutions". Derek is "a gifted quantum expert" and commended for his "vigilance" during construction disputes. His technical background, coupled with his "intimate knowledge of international construction law and arbitration hearings", ensure that he is "highly sought after to testify in disputes".

Derek Nelson is a fellow and current chairman of the Academy of Experts, having acted as expert determiner, adjudicator, mediator and panel member of the Chartered Institute of Arbitrators' business arbitration scheme, with extensive experience as an independent expert witness in litigation and domestic and international arbitration.

A chartered quantity surveyor and a chartered engineering surveyor and commercial manager, Derek is an accredited and certified expert witness, an accredited mediator and accredited expert determiner. His experience covers 40 years in the construction industry.

Derek is frequently retained to prepare independent expert witness reports in construction and engineering disputes in litigation, arbitration, adjudication and conciliation. He is an accredited expert and fellow with both the Academy of Experts and the Royal Institution of Chartered Surveyors, as well as a certified expert witness through Cardiff University and Bond Solon, who has been appointed in the role of independent expert witness on over 70 occasions, addressing issues in combination of delay, quantum and disruption and the interaction of the same and has testified in both court and arbitration proceedings on such matters on over 15 occasions, including giving concurrent evidence. 

He has successfully acted on behalf of both referring and responding parties in a number of adjudication referrals under statutory provisions in the UK, Singapore and Malaysia, and internationally in connection with dispute adjudication and dispute review boards and is accredited as an expert determiner with The Academy of Experts.

Derek is a contributing author to Delay and Disruption in Construction Contracts, fifth edition, first supplement, chapter 17, 'Disruption To Progress And Lost Productivity'.

To date, Derek’s geographical experience includes Belgium, Belize, China, Denmark, Finland, Germany, Hong Kong, India, Indonesia, Ireland, Italy, Japan, Lao, Malaysia, Philippines, Poland, Portugal, Russia, Singapore, Slovakia, Sri Lanka, Sweden, Taiwan, Thailand and Vietnam.

He has a strong reputation with peers and clients alike and is commended for "the breadth and depth of his experience". Derek “performs well under cross-examination” according to respondents, who praise his “clear and well-researched reports”. The “impressive” Derek Nelson is a “much respected” figure in the market, commended by respondents for his outstanding work dealing with quantum, delay and disruption disputes. The "highly respected" Derek Nelson is recognised for his "depth and breadth of technical know-how and industry experience" when it comes to complex construction disputes. Derek Nelson has a broad international practice and impresses peers with his "high- quality reports, well substantiated conclusions and excellent performance under cross-examination". Derek Nelson “performs well in cross-examinations” and offers “professional and consistently high-quality work” whilst referred to as “usually the quickest to comprehend the crux of a matter and from there he offers and communicates the practical options or solutions”. Derek is “a gifted quantum expert” that is commended for his “vigilance” during construction disputes. Nelson’s technical background coupled with his “intimate knowledge of international construction law and arbitration hearings” ensure that he is “highly sought after” to testify in disputes.