Quotes from City Inn Limited v Shepherd Construction Limited

Openness of mind and fairness of approach

[30] In relation to the pursuers' other criticisms of Mr Whitaker, I do not draw an adverse inference from his change of position in relation to the effects of the gas venting instruction. His change of position was made clearly in his second report, and the reasons for it were stated in detail. His change of position was based on the receipt of further information. To change one's opinion in the light of further information seems to me to show openness of mind and a basic fairness of approach. Moreover, Mr Whitaker did indicate that his first report was produced under significant time constraints. Overall, I found Mr Whitaker's evidence to be generally cogent and persuasive, and for the most part I have adopted his analysis.

Errors in a number of logic links will almost inevitably vitiate the programme

[38] It accordingly appears that a number of errors exist in [City Inn’s expert’s] programme; these were largely accepted by him. In my opinion that inevitably makes his as-built critical path analysis of very doubtful value. It is in my opinion clear that such a programme is critically dependent upon the logic links between different activities; that was accepted by both experts. If that is so, I am of opinion that Mr Whitaker must be correct when he states that an error in one logic link can vitiate the whole programme, and errors in a number of links will almost inevitably vitiate the programme.

Sound practical experience and common sense

[40] For the foregoing reasons I generally prefer the approach taken by Mr Whitaker. His views, as contained in his second report (No 7/8 of process), appeared to me to the based on the factual evidence. Moreover, his method of proceeding appeared to be based on sound practical experience and on common sense; I also found the logical connections that he drew in discussing programming to be entirely intelligible.

Persuasive

[51] I have found the evidence of Mr Whitaker to be persuasive generally.

I prefer the views of Mr Whitaker

[83] On this matter, I prefer the views of Mr Whitaker, as supported by Mr Cornish. It is clear that the hotel was a heavily serviced building. The mechanical and electrical plant was situated in the roof space; consequently the provision of a roof covering was critical to the installation of that plant, which was obviously highly susceptible to wet conditions.

I accept Mr Whitaker's evidence on these matters.

[84] 3 Mr Whitaker derived further support for his view that the upstand beams were not critical from the fact that the number of carpenters and steelfixers engaged on the project reduced steadily during the last four weeks of construction of the reinforced concrete frame (3 August-28 August). If the upstand beams had been critical, he would have expected that the numbers of men employed in those trades would have been maintained in order to ensure completion of the reinforced concrete works as soon as possible (No 7/8 of process, paragraph 2.50). I accept Mr Whitaker's evidence on these matters.

and..

[85] In support of this proposition Mr Whitaker produced a short as-built programme (at paragraph 2.53) which indicated that the duration of the installation of the roof steelwork and roof coverings was in fact exactly the same as the duration planned by the defenders, 181 days. I accept Mr Whitaker's evidence on these matters.

Great experience of programming in the construction industry

[94] In part this calculation was based on what actually happened, and in part was based on Mr Whitaker's judgment as to what was reasonable for any particular aspect of the work. I was satisfied that he had great experience of programming in the construction industry and that his estimates of the periods required for particular items of work were reasonable.

Mr Whitaker’s estimates were reasonable

[95] As indicated in the last paragraph, however, I am satisfied that Mr Whitaker's estimates were reasonable; they were based on his experience in the construction industry, and none of them appeared to me to be exaggerated.

Convincing

[100] I found Mr Whitaker's evidence convincing on this matter, and I consider that his method was one that was entirely reasonable and was carried out on a responsible basis. For the avoidance of doubt, I should indicate that the same conclusion relates to the other estimates of delay carried out by Mr Whitaker in relation to instructions issued by Keppie.