Delay analysis is essentially a question of causation. Causation means the specific loss claimed is caused by the events claimed. Sounds simple right? So, if a delay event lasts for 1 week then the claim is for 1 week, right? However, this is not necessarily the case because, going back to the beginning, that 1 week delay has to be proven to be the cause of the specific loss, but you cannot lose something you never would have had in any event. This means it must first be proven what would have happened if the delay did not occur. This is where the baseline calculations come in, the actual progress achieved when not impacted by the delays reveals the progress that would likely have been made if the 1 week delay did not occur. In this way the actual (baseline) progress achieved when not impacted, or least impacted, by the delays is compared to the actual delayed progress to reveal a factual basis for the loss in time suffered by the 1 week delay.
Is the as-planned programme the baseline?
It is also worth noting that although the as-planned programme is sometimes referred to as the baseline programme, this should not be confused with the factual baseline from which delay can be measured against. The as-planned, or baseline programme, cannot be said to be a factual basis from which delay can be measured against. Until the extent to which the programme would have been achieved is proven, the programme should not be used as the baseline.
What if there is no programme or agreed period for completion?
In the absence of an agreed end date it is an implied term that the works must be completed in a reasonable time[1]. I would suggest that the reasonable progress can be ascertained, as discussed above, by establishing what rate of progress was achieved when not impacted by delays and what the completion date would have been at that rate of progress, which would be the baseline from which delays can be measured against. The delayed rate of progress could then be proven and compared to the baseline to show the loss in time suffered against the (reasonable) rate of progress that would have likely been achieved but for the delays.
The Contract terms
Causation can be looked at as 'factual causation' and 'legal causation', the foregoing would be the assessments to show factual causation, the requirements of the contract would be followed to establish entitlement, legal causation and quantum would then follow the outcome of these elements being established and proven. For example the contract may only provide specific remedies for specific types of events and may require other specific results to be proven such 'affects to regular progress' as is the case in most JCT contracts in respect of loss & expense.
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References:
[1] Supply of Goods and Services Act 1982, Part II, s.14. (also see Barkby Real Estate Developments (formerly known as Tarcourt Ambit Developments Ltd) v Cornerstone Telecommunications Infrastructure Ltd [2022] EWHC 1892 (TCC)
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