Alan Whaley

University of Salford, Construction Managment, Faculty Member

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Dr Alan Whaley is a Chartered Construction Manager, Chartered QuantitySurveyor, RICS Accredited Expert Witness and practising delay expert witness. He has over 20 years of experience working at all levels of the construction industry. Alan leads the Dispute Resolution module on the University of Salford’s LL.M Construction Law and Practice programme.

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University of Kerala

King's College London

Rodrigo Hernandez

University of Melbourne

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Papers by Alan Whaley

The acceleration dilemma: can English law accommodate constructive acceleration?

International Journal of Law in the Built Environment, 2015

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How effective is Adjudication for resolving complex delay claims? A case study analysis of 10 delay related Adjudications in the U.K.

Construction Law Journal, 2021

Adjudication is intended to provide a quick, cost-effective method of resolving construction-rela... more Adjudication is intended to provide a quick, cost-effective method of resolving construction-related disputes. Yet critics of adjudication emphasise its rising formality and cost, limited timescales, and potential for "rough justice" when used in complex or high-value claims. In this context, this article uses case study research to examine 10 delay-related adjudications conducted in the UK between 2017 and 2020. The researcher acted as a forensic delay expert in these adjudications and gained first-hand access to a range of novel, context-specific data connected with each adjudication's cause, procedure and outcome. The study found that delay-related adjudications tend to deal with high-value, complex and retrospective disputes, due primarily to referring parties' habit of waiting months or years until dispute escalation. While adjudication remains the most popular method of resolving construction disputes in the UK, the study found that adjudication may not offer the best solution for all delay claims, particularly where cost (as a proportion of claim value) or tribunal expertise is relevant. Where adjudication is selected, there appears to be a clear preference for fact-based delay analysis methods amongst expert witnesses and adjudicators. It follows that the current literature's focus on software-driven methods more commonly used at the project level may be misplaced. Finally, some recent research indicates that referring parties are statistically more likely to "win" Adjudications than defending parties, however, the findings of this study did not support that statistical bias; the referring party failed or succeeded in roughly equal proportions. The empirically derived findings of this article contribute to the existing literature on Adjudication practice, and may assist practitioners in appraising the use of Adjudication over other methods for resolving problematic delay related disputes.

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Why Claims Fail: An Autoethnographic Investigation of Claims Management under Construction Contracts Claims Culture in the GCC States

This paper explores some of the central issues faced by claims management practitioners within co... more This paper explores some of the central issues faced by claims management practitioners within contracting organisations in the GCC, from an insider perspective. Through an auto ethnographic study of the author's practice as a claims consultant in the GCC, the paper illustrates how the meanings practitioners attach to claims can lead to recurring patterns of behaviour that are constantly adapted to the changing circumstances of construction projects. It also suggests how these meanings might affect the ways in which claims are acted upon, and the consequences these actions might have on claim management practice. The empirical perspective of this paper therefore has value in an academic setting, by offering a possible explanation for poor claims management practice.

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Accelerating construction works: pitfalls and perils in reducing delay

Project delays are a common and often unavoidable risk in construction projects. Delays can arise... more Project delays are a common and often unavoidable risk in construction projects. Delays can arise from "excusable" events such as restricted access or additional work, which entitle the contractor to an extension of the completion date; or from "non-excusable" events, such as slow contractor progress, which may result in contractor liability to liquidated damages for delay under the contract. 1 In either case, overrunning the planned completion date can increase outturn costs and reduce profits for both contractor and employer. This means the prospect of "acceleration", or speeding up the remaining work to reduce delays, may be an attractive option to the party with most to lose. Acceleration is normally achieved by working extra hours, changing working methods or revising the planned sequence of work. 2 These methods can result in a significant decrease in contractor efficiency and an increase in project cost. 3 However, standard form contracts often lack mechanisms to value and agree acceleration, leaving it to the parties to reach acceptable terms. This is made difficult because acceleration agreements introduce additional risk and uncertainty into the contract, and acceleration costs are difficult to ascertain. The circumstances in which acceleration might be required are diverse. Where delays are excusable, the employer may require the contractor to accelerate to reach completion earlier than would otherwise be the case under the contractual extension of time machinery. The parties might agree lump sum, conditional or cost based payments for achieving completion earlier than would be required by the contract. On the other hand, contractors might prefer to pursue contractual avenues to recover an extension of time and loss and expense, rather than incur additional acceleration costs for which full recovery may be uncertain. Even in situations of non-excusable delay, the contractor might prefer to incur liquidated damages than accelerating to complete on time, potentially requiring the employer to incentivise timely completion. *Const. L.J. 477

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The acceleration dilemma: can English law accommodate constructive acceleration

Purpose – The aim of this paper is to explore the hypothesis that a contractor is entitled to pay... more Purpose – The aim of this paper is to explore the hypothesis that a contractor is entitled to payment for " constructive " acceleration implemented to avoid liquidated damages when denied a warranted time extension request by the employer or certifier under an English law construction contract. This claim is recognised in the US legal system, but not elsewhere. Design/methodology/approach – This paper adopts a " black letter " approach to reviewing the claim of constructive acceleration within the context of English and Commonwealth case law, from the perspective of a claimant contractor. Findings – The research presented in this paper concludes that whilst claims for constructive acceleration are unlikely to succeed in an English court on the basis of US law, a claim might be supportable on more orthodox common law grounds. These include implied instructions under the contract, breach of the contract based on the employer or certifier's failure to operate the contract, mitigation of damages, unjust enrichment and tortious intimidation. Research limitations/implications – The focus of this paper is placed on English, Unites States, Canadian and Australasian case law. Practical implications – The range of potential legal grounds for constructive acceleration examined in this paper provides a toolkit for practitioners preparing to make or defend constructive acceleration claims. This paper also bring more clarity to a potential legal problem faced by practitioners in circumstances of significant tension and limited time. Originality/value – This paper provides a useful information source for practitioners faced with the prospect of advancing or defending constructive acceleration claims, and it provides a foundation for future related studies examining a wider scope of jurisdictions.

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INTERNATIONAL COMMON-LAW APPROACHES TO CONSTRUCTIVE ACCELERATION CLAIMS: WHAT IS THE SOLUTION IN ENGLISH LAW?

A doctrinal comparative law examination of whether under English contract law a contractor is ent... more A doctrinal comparative law examination of whether under English contract law a contractor is entitled to payment for “constructive” acceleration implemented to avoid liquidated damages when denied a warranted time extension request by the employer or certifier. Whilst claims for constructive acceleration can be recoverable under U.S. law, there is no direct applicability of that doctrine in English law. An examination of potential alternatives by way of implied instructions under the contract, breach of the contract based on the employer or certifier’s failure to operate the contract and mitigation of damages reveal some possible solutions.

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The acceleration dilemma: can English law accommodate constructive acceleration?

International Journal of Law in the Built Environment, 2015

Download

How effective is Adjudication for resolving complex delay claims? A case study analysis of 10 delay related Adjudications in the U.K.

Construction Law Journal, 2021

Download

Why Claims Fail: An Autoethnographic Investigation of Claims Management under Construction Contracts Claims Culture in the GCC States

Download

Accelerating construction works: pitfalls and perils in reducing delay

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The acceleration dilemma: can English law accommodate constructive acceleration