Ian Robinson is the founder and principal of Tempus Delay Analysis, based in London. Ian founded Tempus in 2012, having been a partner with construction specialists Davis Langdon LLP since 1998. Ian leads a specialist team providing advice, support and expert analysis in relation to delay and disruption as it affects the construction and engineering industries, and specialises in forensic investigation of construction and engineering delays.
Describe your career to date.
I began my career 35 years ago as a chartered quantity surveyor but very quickly found myself providing assistance to architects and others considering extension of time awards. I developed these skills over a period of time and have spent the past 25 years providing advice and acting as expert witness in a variety of high-value, high-profile delay disputes.
What has been your most interesting case to date and why?
There have been many. Hydroelectric power plants in the Andes, deep water harbours in South Africa, solar towers in the Negev desert. But overall I would probably have to say Walter Lilly v Mackay. It’s the only case I’ve been involved in that grabbed headlines in the Daily Mail. From a professional perspective it was interesting because of the need to find a reliable way of measuring critical delay in the absence of most of the information we would normally use. It was also an entertaining case because of the “colourful” characters involved.
Which skills are key to success as a delay expert?
Needless to say an understanding of critical path method and the ability to use programming software are essential skills. However, in the expert witness field an eye for detail is also essential, coupled with the ability to understand key components of the big picture. A nimble mind helps, as does a strong command of the spoken and written word. The work is forensic in nature and so it is necessary to be able to think forensically. To be able to piece together as comprehensive a picture as possible of what happened on a project, sometimes from relative scraps of information, and to do so in a way that will withstand often quite intense scrutiny. In doing so it is important to maintain one’s objectivity. It has to be remembered that the expert’s duty is first and foremost to the truth and to the tribunal. However tempting it may sometimes be, you cannot allow yourself to see things as your client does if that is not where the available evidence leads. Apart from the likely damage to your own reputation, it may also cause your client to incur additional costs in pursuing a case that is weaker than he or she is led to understand.
What do you enjoy most about your current role?
There is always a new challenge. The portfolio of projects that I’ve worked on over the past 25 years has been extremely varied, as have the types of issues which I have had to address. I work on both small and large projects. Numerous different types of buildings, civil and heavy engineering, process engineering, power generation, onshore and offshore works. Some of the largest projects have had the sums in dispute measured in the hundreds of millions of dollars, which brings its own particular type of pressure, but the smaller jobs quite often bring challenges of their own. I have also had the opportunity to work on international cases in a number of (sometimes exotic) locations, places that I would have been unlikely to have had the opportunity to visit otherwise. All in all there has rarely been a dull moment, or a reason to think “same old same old”, in the past 25 years.
How has the approach to conducting delay analysis changed in the past 10 years, and what impact has this had on your practice?
There has been a distinct move in the past 10 years away from theoretical methods of analysis that rely heavily on the electronic manipulation of programmes, and towards techniques that rely primarily on a forensic review of the facts, and the application of common sense and professional judgement. This is not to say that there is no place now for proper scrutiny of electronic programmes, or for their use in identifying the critical path and measuring critical delay. However, in my experience, it is much more common now for such programmes to be subjected to a proper level of scrutiny and sanity-checking before being relied upon in this way. This has not necessarily always been the case. It is also more common nowadays for the results of any such review of electronic programmes to be properly supported by a detailed forensic review of the facts, so that the results of the analysis appear consistent with what is known to have happened on the project.
In light of the above there has in my experience been less reliance in recent years on the more theoretical methods of analysis, such as “as-planned impacted” and “collapsed as-built”, and more emphasis on methods (such as “as-planned versus as-built-in windows”) that have a demonstrably clear line of sight between the results of the analysis and the factual narrative of the progress of the works. This development has been assisted, I think, by the Society of Construction Law’s publication of the Second Edition of its Delay and Disruption Protocol, which, unlike its predecessor, carries a useful comparison of the strengths and weaknesses of all the principal delay analysis techniques which have been in common use in recent years.
One further point worthy of mention in this regard is that, with a move towards delay analysis techniques that encourage the application of professional judgement, rather than blind reliance on the electronic content of programmes which (more often than not) were not produced for that purpose, it is important that such judgement is applied soundly and objectively if the analysis is to produce reliable results which will withstand the scrutiny to which they are likely to be subjected.
What challenges does the lack of clarity regarding the identification of concurrent delay pose for practitioners? How do you see this area of law evolving in the next five years?
For a number of years now it has generally been accepted as settled law that, in cases where critical delay has been caused concurrently by two or more events occurring at about the same time, a contractor will be entitled to an extension of time if only one of those events carries an extension of time entitlement, even if the others do not (and even if one or more of the events causing delay is the responsibility of the contractor). What is much less clear, however, is the approach that the courts may take in determining those circumstances in which it is accepted that concurrently caused delay has in fact occurred. In other words, when can two different events genuinely be said to have concurrently caused the same critical delay? Notwithstanding the number of legal authorities that have commented on the subject of concurrent delay in the 20 years since the decision in Henry Boot v Malmaison, there has been very little practical guidance from the courts that would assist analysts in recognising a concurrently caused delay when they see it.
What I mean by this is that it does not follow that two events can necessarily be regarded as concurrent causes of delay simply because they appear to have occurred at about the same time. It is generally accepted, for instance, that an event must have a delaying effect on the project critical path in order to give rise to an extension of time entitlement. In other words, the event in question must be capable of directly causing delay to the completion of the project. It is perfectly possible, however, that two events which have the potential to delay site progress can occur at or about the same time but only one of these directly affects the critical path. If one of these events has caused critical delay, whereas the effect of the other event has been simply to use up some float on a non-critical sequence of work, then it seems to me that it is difficult to argue that the effect of these events on the completion of the project is the same – ie, that the events have acted concurrently.
A phrase that has been much used in this context in recent years is “causative potency”, with the view being expressed that two or more delay events can only be regarded as concurrent if they have equal causative potency – ie, the same capacity independently of each other to cause the same critical delay to project completion. It seems to me that one way of establishing equality of causative potency in such situations is to demonstrate that both events had the same effect on the critical path – ie, that they were concurrently critical and not simply coincident in time.
There is also a further issue concerning how one should approach the coincidence in time of competing delay events when determining whether two or more such events can be considered to have been genuinely concurrent. Alternative narrow and broad interpretations have been proposed in this regard. The narrow approach argues that the competing delays must be wholly coincident in time – ie, that they must start and finish on the same dates. Most acknowledge that this will be a very rare occurrence. The broader interpretation allows some flexibility in this regard and, as a result, concedes that concurrency can occur in (less rare) situations where the delay events are not entirely coincident in time but instead where there is simply a period of overlap when both events can be said to have had their effect.
It will be apparent from the above that there remains scope for disagreement between delay analysts as to how concurrent delay ought to be analysed and, indeed, from a factual perspective whether two “competing” events can be regarded as concurrent at all. It is not an easy matter to anticipate the direction in which the courts may move in due course when this issue comes to be considered again, although some current opinion appears to suggest that a narrower and more restrictive approach may be in the offing. If so, this may be considered by some to unfairly exclude a contractor’s extension of time entitlement in cases of concurrent delay to those rare cases where both causes are entirely coincident in time. Some further clarity in this regard, however, would reduce the scope for uncertainty and disagreement as to how such issues ought to be dealt with in the future.
In what ways does Tempus Delay Analysis distinguish itself from competition in the market?
While one always needs to be able to mobilise sufficient resources to undertake a commission, it is also of critical importance that the individual instructed as the expert has sufficient time available to stay close to the detail of any particular matter in which he or she is involved. Tempus has always tried to maintain turnover and staff at a level that leaves the instructed expert properly able to engage with the detail of any given matter on which we are working, whenever that is required.
You have had a very distinguished career to date. What would you like to achieve that you have not already?
Perhaps try to find the time at some stage to write a book. An ambition I have had for some time, but which as yet I have not had the opportunity to pursue.
Ian Robinson is an exceptional construction quantum and delay practitioner who is well versed in handling claims involving pipelines, power stations, roadworks and bridges.
Ian Robinson is the founder and principal of Tempus Delay Analysis, based in London. Ian founded Tempus in 2012, having been a partner with construction specialists Davis Langdon LLP since 1998 and having led Davis Langdon’s legal support group since 2008. Ian leads a specialist team providing advice, support and expert analysis in relation to delay and disruption as it affects the construction and engineering industries. Ian specialises in the forensic investigation of construction and engineering delays, with a view to assisting parties and tribunals to identify the extent, causes of and responsibility for critical project delays. Ian’s clients are drawn from all sides of the industry and include property developers, government and local government departments (both UK and international), universities, contractors and specialist subcontractors, utility companies, engineers and architects and their insurers.
Ian has practised in this area since 1995 and has acted as an expert witness in numerous high-value and high-profile cases before a variety of tribunals. This includes a number of appearances before the Technology and Construction Court in London, and also before international arbitral tribunals (both ICC and UNCITRAL) in London, Paris, Bucharest, Miami, Johannesburg and Dubai. Ian has given oral evidence on 20 occasions, including a number of reported cases. Most recently these include Mirant Asia-Pacific Construction (Hong Kong) Limited v Ove Arup & Partners International Limited and Another  EWHC 918 (TCC), and Walter Lilly & Co Ltd v Mackay & Another  EWHC 1773 (TCC).
Ian’s practice is a combination of UK and internationally based work, including projects in Canada, South Africa, Peru and Chile, the UAE, Ireland, the Philippines, Romania, Trinidad, Turkey, Israel, Kyrgyzstan, Spain, Kathmandu, Kenya, Saudi Arabia and Angola. Ian’s experience covers a wide range of sectors in the construction, civil engineering, energy and oil and gas industries. This includes commercial and residential property (including a number of iconic projects in London), hospitals, hotels, military facilities, major roads and bridges, flood defence and control facilities, coal, gas, hydro-electric, nuclear and offshore power generation, airport facilities, oil pipelines and pumping facilities, offshore jetties and harbour construction. Ian has advised on matters with sums in dispute of up to £500 million.
Ian is a member of the Royal Institution of Chartered Surveyors, having qualified as a chartered quantity surveyor in 1990.