Why Traditional Delay Analysis Fails in 28-Day Adjudications

The standard approach to forensic delay analysis,retrospective windows analysis, full as-planned versus as-built comparisons, and granular critical path interrogation,was designed for litigation and arbitration. These methods assume months of preparation time, access to complete project records, and the ability to present technical evidence over multiple hearing days.

Adjudication does not offer any of those luxuries. The statutory right to adjudicate under the Housing Grants, Construction and Regeneration Act 1996, s.108¹ provides for a decision within twenty-eight days of referral. From the moment a Notice of Adjudication is served, the referring party typically has seven days to serve its Referral. The responding party then has a matter of weeks,often as few as fourteen days,to prepare and submit its Response.

Yet the same forensic rigour is expected. The adjudicator will scrutinise the delay analysis with the same technical eye as an arbitrator,as confirmed by the TCC's robust approach to enforcement in cases such as CNO Plant Hire Ltd v Caldwell Construction Ltd [2024] EWHC 2188 (TCC).² The difference is that you have a fraction of the time to prepare it.

This creates a fundamental problem. Traditional delay methodologies are time-consuming by design. A full retrospective windows analysis of a three-year infrastructure project can take weeks of analyst time. An as-planned versus as-built comparison requires complete baseline programmes, contemporaneous updates, and painstaking cross-referencing with site records. There is simply no way to compress these methods into a fourteen-day response window without sacrificing either accuracy or completeness. The SCL Delay and Disruption Protocol (2nd Edition, 2017)³ now recognises that no single methodology is preferred,providing a menu of approaches with guidance on selecting the appropriate method for the circumstances. This flexibility is critical in the adjudication context.

Where concurrent delay is alleged, the position is yet more complex. The principles established in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd⁴ and developed in Royal Brompton Hospital NHS Trust v Hammond (No. 7)⁵ require careful analysis of competing delay causes,analysis that must be compressed into days rather than weeks. The approach endorsed in Walter Lilly & Company Ltd v Mackay⁶,the leading modern authority on prospective versus retrospective delay analysis,demands a level of forensic detail that traditional sequential methodologies struggle to deliver within adjudication timescales.

The answer is not to abandon forensic discipline,it is to restructure how the analysis is performed. The methodology must be adapted to the forum, not the other way around.

At Meritus Via, we approach adjudication delay analysis differently. Our technology ingests the programme data, daily logs, and correspondence within hours of instruction. The critical path is identified algorithmically. Float consumption is mapped. The narrative is then built by our senior practitioners around the data, not around a traditional sequential methodology.

The result is a forensically robust delay analysis,one that can withstand scrutiny by the adjudicator,delivered within the timescales that adjudication demands. The analysis is no less rigorous. It is simply structured for the reality of the forum.

This distinction matters. Too many responding parties lose adjudications not because their position is weak, but because their delay analysis arrives incomplete or is presented in a format that the adjudicator cannot easily interrogate. The twenty-eight-day clock does not pause for methodological perfectionism.