Facts are Facts

Facts are facts

“Facts are facts and will not disappear on account of your likes.” – Jawaharlal Nehru

After Donald Trump was sworn in as the President of the United States there followed a row between various journalists and the then White House Press Statesman Sean Spicer over the attendance numbers at Trump’s inauguration in January 2017.

This row started when Spicer claimed that Trump’s ceremony had drawn the “largest audience to ever witness an inauguration – period – both in person and around the globe“. However, a comparison of aerial photographs provided by the Press of the 2017 ceremony and those from Barak Obama’s 2009 inauguration showed a different picture. At the Meet the Press event two days after the ceremony Kellyanne Conway told the assembled journalists that Spicer was providing “alternative facts”.

This phrase has now gone down in American folklore, with many claiming that her remarks were “Orwellian” in nature. Breitbart News’ Joel Pollak however defended Conway’s use of “alternative facts” by arguing that it was a harmless and accurate term in a legal setting, “where each side of a dispute will lay out its own version of the facts for the court to decide”. Our own Guardian newspaper was not convinced noting that a search of several online legal dictionaries did not yield any results for the term.

An Oxford English dictionary definition of facts is “a thing that is known or proved to be true”. On this basis, there can never be “alternative facts”.

When commencing to establish whether there are grounds to produce a claim for an extension of time, the first thing that must be considered are the facts. This does not include, at this stage, people’s opinions of the impact of those facts. How fast a concrete structure was erected compared to the contract programme for example can be easily demonstrated by contemporaneous records (photographs, site records, etc.) and the contract programme. The cause of any delays is also a matter of fact although this is often harder to establish and can be affected by the views of those personnel that were heavily involved at the time.

On one particular project, a Construction Director had made a fundamental, and unilateral, decision to alter the programmed construction approach. This change had led to substantial delays to the progress of the works, and in particular, had created a bottleneck in terms of access routes. However, the Director had convinced himself, and others within the business, that this change was as a direct result of variations and late information from the design team. A careful review of the facts led to the inevitable conclusion that there was no correlation between any variations or late information and the change of the construction sequence. The Contractor, at the Director’s behest, still pursued a claim for an extension of time but, unsurprisingly, did not receive any award from the Architect in this respect and a subsequent adjudication was also lost. Alternative facts did not help in this particular scenario.

In any claim, a presentation of the facts will always reveal where a problem occurred, or where a delay was experienced. And to avoid the same problems as our ‘mythical’ Contractor above, it is always worthwhile to get an independent opinion and review before proceeding further. This will at the very least establish the best course of action for any recovery sought. Of course, as we all know, it is after that when the fun begins………..

David Page Senior Consultant