1 Tuesday, 21 November 2017 14 (3.15 pm) 15 CHAIR OF THE INQUIRY: Mr McClelland? 16 MR MCCLELLAND: Thank you, my Lord. The next witness is 17 Iain McAlister. 18 MR IAIN MCALISTER (sworn) 19 CHAIR OF THE INQUIRY: You are going to be asked questions 20 by Counsel to the Inquiry, Mr McClelland, at least in 21 the first instance. If you just listen to the question 22 and answer it as directly as you can. Speak into the 23 microphone so everyone can hear what you're saying, and 24 if you speak in a measured pace so that the shorthand 25 writers can keep up with you. 164 1 Examination by MR MCCLELLAND 2 MR MCCLELLAND: Thank you. 3 Could you please state your full name? 4 A. Iain McAlister. 5 Q. Can we please have up on screen document reference 6 TRI00000122. 7 Now, Mr McAlister, you should also have a paper copy 8 in front of you, I think? 9 A. I have. 10 Q. Can you confirm that these are the written answers that 11 you supplied to the Inquiry in response to the Inquiry's 12 questions? 13 A. Yes, they are. 14 Q. Now that you're under oath, do you remain content that 15 the answers you've given remain accurate and truthful 16 and should stand as your evidence to the Inquiry? 17 A. Yes. 18 Q. Is there anything in them at all that you no longer 19 think accurate or that you might like to clarify? 20 A. No. 21 Q. I will take those answers as read, but there are a few 22 matters which I would like to ask you to clarify or 23 expand upon. 24 First of all, in relation to your professional 25 qualifications, you're a chartered engineer; is that 165 1 correct? 2 A. Chartered civil engineer, yes. 3 Q. You have degrees in civil engineering and in 4 construction law? 5 A. That's correct. 6 Q. And I think you're a Director with Acutus? 7 A. Associate Director. 8 Q. Could you just explain briefly what Acutus is? 9 A. We are a small practice of independent experts dealing 10 with construction and engineering disputes. Our 11 business is predominantly dealing with matters of delay, 12 disruption, and the assessment of quantum in relation to 13 those disputes. 14 Q. You mentioned there that one of the things you do is 15 carry out delay analysis. To put today's evidence in 16 context, could you just briefly explain to us what that 17 involves? 18 A. Typically construction and engineering contracts set 19 a prescribed completion date. It's clearly very 20 important for the employer organisation to have the 21 project delivered on time, and the contractor therefore 22 is obliged to complete by a particular period of time. 23 The projects require management of time and work 24 through the period that the works are being delivered, 25 and therefore the contract normally requires the 166 1 production of a programme to set out the relative timing 2 of events. 3 Typically it's produced by the contractor and 4 approved by the employer or his representative. That 5 then becomes the measuring tool to monitor progress as 6 the works proceed. 7 Under most forms of contract, there are provisions 8 to grant extension of time to the time for completion, 9 and those mechanisms have to be applied in circumstances 10 where typically the employer changes something, or 11 certain events that are not considered contract the risk 12 events under the contract require to be assessed and the 13 degree to which the end date has to be adjusted requires 14 the analysis of delay. 15 Q. Would it be fair to describe delay analysis as 16 a detailed and forensic exercise? 17 A. Certainly in dealing with it in adjudications or in 18 litigations it's certainly very much that, in trying to 19 resolve disputes. 20 Q. Your written answers to the Inquiry, and those of your 21 colleague, Robert Burt, suggest that Acutus were 22 involved in analysing delay for the tram project from 23 around April 2009 until May 2011. Is that correct? 24 A. That sounds correct, yes. 25 Q. Who was it that instructed Acutus? 167 1 A. I think originally the construction would have come 2 through Dennis Murray or it may have been Susan Clark. 3 Q. Dennis Murray, I think, was the Commercial Director at 4 tie? 5 A. That's correct. 6 Q. Susan Clark, the Deputy Project Director? 7 A. That's correct. 8 Q. Were you ever instructed by or provide advice to the 9 City of Edinburgh Council? 10 A. No. 11 Q. Now, some work was done also by your colleague, Mr Burt. 12 Within Acutus, was it the two of you who were primarily 13 responsible for Acutus delay analysis work on the tram 14 project? 15 A. Yes. And I dealt predominantly with the delay side of 16 matters and Robert Burt dealt predominantly with 17 quantum, although he did get involved in some of the 18 investigation work. 19 Q. Okay. Specifically in relation to the analysis of delay 20 on the Infraco contract, was that predominantly done by 21 you? 22 A. Yes, it was. 23 Q. If we could turn, please, to page 2 of the document that 24 we have up on screen, you see question 3 there, 25 Mr McAlister. Your answer, which is in blue, reads: 168 1 "My role was, principally, to provide tie with 2 independent expert services in respect of delay and 3 extension of time claims being promoted by the Infraco 4 Contractor, BSC." 5 Then if we move to page 6, please, question 14, 6 again, just reading the answer: 7 "I was involved in only one formal dispute 8 resolution procedure, the MUDFA 8 adjudication. BSC was 9 the referring party, therefore tie was required to 10 respond to what was claimed. My work was not an 11 analysis of all the delays. It was only an analysis of 12 the matters BSC claimed were the causes of delay." 13 Did the fact that you were responding to the claims 14 made by BSC have an effect on your analysis of delay? 15 A. I don't think it had a particular effect. I had 16 a specific task. Under a construction contract, it is 17 normally for the party who is making the claim, in this 18 case seeking the extension of time, to make their case. 19 And tie being the party to respond to that, has to 20 respond, and I was engaged to provide independent expert 21 advice as part of that response. 22 Q. Was the scope of your work, therefore, dictated or 23 determined by the scope of the claims that were made? 24 A. In the context of preparing the report for MUDFA 8, yes, 25 it was. 169 1 Q. You refer there to MUDFA 8. Is that a reference to 2 version 8 of the MUDFA programme? 3 A. It is, and that's -- claim and dispute became known as 4 MUDFA 8. 5 Q. In particular, that was a claim by the BSC consortium 6 for extension to the Infraco programme consequent on 7 delays in the MUDFA programme? 8 A. That's correct. 9 Q. Could we please move to page 7 of the document on 10 screen. 11 Now, this, just to put this in context, your answer 12 here is in response to a question about the amount of 13 work involved in carrying out a full analysis of all 14 delay in the project. 15 Just picking up the sentence which begins towards 16 the end of the first line: 17 "If I may add, the difficulty in estimating what 18 time and effort might be required is that under the 19 terms of the Infraco contract it is for BSC to make its 20 case (providing all appropriate supporting information) 21 and for tie to respond. What we encountered was BSC 22 making claims supported only by selective information 23 and, apparently, withholding and refusing to provide 24 other information which might undermine its case. For 25 Acutus to attempt to conduct a delay analysis on all 170 1 delay issues would require trying to find out 2 information that was not being made available." 3 Now, this point about BSC making claims supported by 4 selective information, what do you mean by that? 5 A. What BSC was doing was taking a baseline programme and 6 impacting into that programme events, selected events, 7 the MUDFA delays, and using that to project a delay to 8 completion of the project. 9 But it was not taking into account the state of 10 affairs at the point in time where the analysis had to 11 start, and it was also not taking into account other 12 events that were apparent from the other information 13 that was available, or indeed from physically inspecting 14 the site at that time. 15 Q. So what information did they supply in support of their 16 applications? 17 A. The claim was based, as I recall, on the issue by tie of 18 the MUDFA Revision 8 programme. That was an updated 19 programme to show the latest date or the latest thinking 20 of the dates when utilities diversion work would be 21 complete, on different sections of the project. 22 Those dates were later than the dates that had 23 previously been noted, and therefore the analysis that 24 was being presented was to show the effect of those 25 dates, if they had been different at the beginning of 171 1 the contract. 2 Q. So in short, was the information supplied essentially 3 related to delay in the utilities programme? 4 A. That was, as I recall, the sole factor that was being 5 presented in the delay analysis, or the sole cause that 6 was resulting in the effect of a later completion date. 7 Q. If you can just explain briefly, and in broad terms, 8 what information in your view was missing from the 9 applications that they made? 10 A. Well, it certainly was apparent that the works that had 11 been undertaken up to that point in time had not been 12 progressing as per the original plan. There were other 13 factors that appeared to be delaying the physical work, 14 particularly -- it certainly appeared that the design 15 was running late. We could see that from the actual 16 progress on design, or, dare I say, the lack of progress 17 on design, allowing things to be -- or getting the 18 design advanced to the point where design was complete, 19 and therefore construction could commence. 20 Those matters appeared to be what were the real 21 causes of the delay, and appeared to be much bigger 22 delays on individual items of work as opposed to the 23 utilities running late. 24 Q. Thank you. 25 If I could ask you, please, to have a look at 172 1 document DLA00001692. 2 Now, we have here, Mr McAlister, a document or 3 a letter from the BSC consortium to tie dated 4 23 October 2009. 5 I don't think you'll have seen this before, unless 6 you can tell us different. 7 Have you seen this letter before, as far as you 8 recall? 9 A. I think I probably have. 10 Q. All right. 11 A. It was a long time ago. 12 Q. Okay. Well, I'll just read a passage out to you, 13 starting from the beginning of the letter: 14 "We refer to your many letters issued in response to 15 our notifications of Compensation Events raised during 16 the currency of the Contract requesting that we provide 17 the notices, estimates and details required under 18 Clause 65.2 of the Infraco Contract. 19 We have provided, under cover of our letter dated 20 6 August 2009 ... an Estimate in respect of Infraco 21 Notification of tie Change number 429 ..." 22 I think that's -- as it goes on to say: 23 "... namely the delay and disruption arising from 24 incomplete MUDFA Works as a consequence of the issue by 25 tie to Infraco of the MUDFA programme revision 8. 173 1 Though tie acknowledge that a Notified Departure has 2 occurred, a dispute has arisen concerning the quantum of 3 Infraco's entitlement to extensions of time to the 4 Planned Sectional Completion Dates arising from the 5 delays detailed in the MUDFA programme ... 6 It is our belief that the full details required by 7 the contract to be provided by Infraco in respect of 8 extension of time entitlement, relief from obligation, 9 details of costs and losses and possible mitigation 10 measures adopted in connection with the myriad of 11 compensation events notified to date cannot be 12 ascertained until the resolution of the dispute 13 concerning INTC 429. This is because the dominant cause 14 of delay on the project is the delayed MUDFA works. We 15 are certain tie will understand that to perform any 16 analysis against the Revision 1 Programme in respect of 17 these secondary forms of delay would not produce any 18 meaningful or reliable information upon which an 19 extension of time could be agreed. It would be 20 a categorical waste of resources for all parties." 21 Now, to what extent was the approach narrated there 22 one which characterised the claims made by BSC for 23 extension of time? 24 A. I think that does sum up their approach, yes. 25 Q. Are you aware of any reason why they might have 174 1 proceeded in that way? 2 A. To the extent that it -- I think that they certainly 3 would consider that the MUDFA works overrunning would 4 clearly be an employer risk event, and therefore they 5 would -- that would trigger the process for assessing an 6 entitlement to delay. 7 But it is INTC 429, so there are 428 INTCs that 8 precede it. But they are not being assessed earlier, 9 even though there would appear to be earlier events. 10 Q. Yes. Did the approach suggested there of focusing on 11 the utilities-related delays have an impact on you when 12 it came to trying to analyse the causes of delay? 13 A. Well, it was certainly something that I had to address. 14 I could see what was being done. It is not an uncommon 15 approach. But it often is flawed, particularly on 16 complicated projects where there are many factors at 17 play; and therefore I recognised the approach, 18 and I recognised that it needed to be looked at more 19 carefully to make sure that the approach they were 20 taking, the analysis that they had produced, the delays 21 that that was projecting, were they in accordance with 22 the provisions in the contract, and were they properly 23 assessing delay, and then using that to seek extension 24 of time and the additional time related costs. 25 Q. In the third paragraph of that letter, we see that BSC 175 1 assert that the dominant cause of the delay on the 2 project was the delayed MUDFA works. To what extent was 3 it possible to reach a conclusion about the dominant 4 cause of delay, based on the information that was being 5 made available by BSC in support of their claims? 6 A. Well, their claims in effect were saying that there was 7 one cause of delay, and it was MUDFA, or late completion 8 of the MUDFA works. Their analysis contained no other 9 factors. 10 So in their analysis, it was the dominant cause 11 because it was the only cause. 12 Q. Yes. Thank you. 13 Now, in the written answer that we looked at 14 a moment ago, which is your answer to question 15 -- if 15 we just put that up on screen. It was TRI00000122. 16 That's it there. 17 As I read it, you were critical of the consortium 18 for making extension of time claims without certain 19 information. Was that a fair assessment of your 20 position? 21 A. Well, it appeared to me that they were not considering 22 all of the relevant information. And therefore, yes, 23 that in my eyes was not in accordance with the 24 requirements of the contract. 25 Q. In particular, was that information relating to things 176 1 like delay associated with design? 2 A. Certainly that was one factor, yes. 3 Q. What other factors did you have in mind? 4 A. Walking around the site, looking at the condition of the 5 site at different locations. What I could see on the 6 ground was quite different from what was contained in 7 the delay analysis programmes that were being presented 8 by MUDFA. I could go to one part of the site, and 9 according to the MUDFA delay analysis, a bridge should 10 have been completed, and yet you could walk up the 11 street and it hadn't been started. And it was not being 12 delayed by any MUDFA works. 13 Q. Thank you. 14 Now, we understand that in and around the middle of 15 2009, tie and BSC discussed and to some extent agreed an 16 extension of time of nine months with six months costs. 17 Do you recall that? 18 A. I recall that being discussed. I think it might be more 19 correct to say that it was -- it was discussed. I'm not 20 sure that it was agreed, because it wasn't accepted, but 21 I do understand that that was -- my understanding was 22 that it was an offer that tie had put to the contractor, 23 and there certainly had been discussion about it, but it 24 hadn't been accepted. 25 Q. Yes. Whatever the stage of agreement that was reached 177 1 in relation to it, it was certainly not followed through 2 or it was departed from? 3 A. Quite possibly. I wasn't party to those discussions. 4 Q. Could we please have on screen document CEC00800270. 5 Now, we see here that this is an email from you to 6 Susan Clark of tie, dated 30 July 2009. This discusses 7 the question of a deal on extension of time. 8 So just going by the date of this, in July 2009, 9 that would be at a relatively early stage of your 10 involvement; is that -- 11 A. Yes, I would think so. 12 Q. Now, just in the second paragraph, you say: 13 "Re the issues from Tuesday's discussions, here are 14 the points I noted down yesterday morning, expanded with 15 further comments and thoughts. 16 BSC clearly want to 'cut a deal' both in terms of 17 time and money. They don't want to get into a detailed 18 assessment of entitlement to either. (You can probably 19 read into this better than I can)." 20 Did you have any views around that time about why 21 BSC might not want to get into a detailed assessment of 22 entitlement? 23 A. Well, my feeling was that their analysis was not robust, 24 and that a detailed assessment would undermine that 25 analysis, and indicate that their claim was not 178 1 warranted and that they should not get what they were 2 claiming. 3 Q. Thank you. 4 Then reading on: 5 "My gut feeling is that when we get into the 6 Sectional Completion C assessment ..." 7 Just pause there, can you recall what Sectional 8 Completion C was concerned with? 9 A. Section Completion C is in effect completion of the 10 entire route. After Section C you have Section D, which 11 is more or less simply a six-month period, as I recall, 12 where the trams are run without passengers to prove that 13 all the systems are working. So Section C is physically 14 building everything and getting it to the stage where 15 trams can start to run and operate over the entire 16 route. 17 Q. Thank you. So just returning to the email: 18 "My gut feeling is that when we get into the 19 Sectional Completion C assessment there will be 20 a fairly large MUDFA and design related delays that may 21 entitle BSC to extension of time. It's too early yet to 22 say if six to nine months is realistic, but I sense it 23 may not be too far off the mark. However, I also 24 believe that there are many concurrent delays that are 25 the responsibility of BSC. Exactly how these will play 179 1 out in any delay analysis will depend on the details. 2 That aside, such BSC delays may be of particular 3 significance in terms of the delay costs that BSC may be 4 entitled to recover." 5 You use the term "gut feeling" there, Mr McAlister. 6 Can we take it then that these were your initial 7 impressions, rather than the result of any detailed 8 analysis? 9 A. Yes, I'd started to examine the various -- the claim, 10 the programmes, and started to speak to people in tie 11 who would give their opinion on things, and this email 12 was written following one of the few meetings that I had 13 with representatives from BSC or BBC, whatever you want 14 to call them, and it was a meeting where tie had asked 15 me to explain what I saw as the shortcomings in their 16 analysis, and I was -- part of my gut feeling was 17 influenced by the reaction that I was getting from those 18 who I was pointing out the short -- the potential 19 shortcomings; or perhaps I would point and say: I see 20 what you're claiming, but it's been put to me; or I can 21 see from other evidence that there might be a reason why 22 it is not quite as simple and clear cut as that, and 23 there are other factors at play; I need to be satisfied 24 that they are not major issues, if I'm going to try 25 and -- or get to the point where I'm going to agree with 180 1 the claim that you have submitted. 2 When you put that sort of thing to fellow 3 professionals, you start to judge the reaction that you 4 get, and they weren't come back with -- being confident. 5 They weren't coming back and starting to point out 6 examples. They were fairly quiet and withdrawn, and 7 that was why I started to get the impression that they'd 8 really -- wouldn't want to go into the areas that I was 9 talking about, because they would undermine their 10 position. 11 Q. Thank you. 12 You make a point here about concurrent delay and 13 costs associated with that. 14 What matters did you have in mind at that point in 15 time about concurrent delays that were the 16 responsibility of BSC? 17 A. Well, BSC's claim was solely based on the MUDFA delays. 18 But the other factors that I was identifying and thought 19 were not being taken into account appeared to me to 20 certainly potentially be BSC delays. Things that they 21 would be liable for, although I wasn't certain, but if 22 that was the case, then if, for example, they were 23 claiming nine months' extension of time for MUDFA 24 delays, but they would have been on site for six months 25 of that nine-month period because of other things that 181 1 were their own cause, then they wouldn't get the 2 time-related cost elements for the full nine months. 3 They might only get the difference between the nine 4 months and the six months. 5 Q. Thank you. 6 Now, reading on, so just picking up where we left 7 off, which is about eight lines from the bottom, the 8 sentence which begins: 9 "What I took from yesterday's meeting ..." 10 Do you see that? 11 A. Yes. 12 Q. "What I took from yesterday's meeting is that Martin and 13 his team ..." 14 Is that a reference to Martin Foerder? 15 A. Yes, it was. 16 Q. "... would like to strike a deal that grants BSC around 17 nine months extension of time with full time related 18 costs, plus acceleration costs to hopefully achieve an 19 earlier completion date. While their attitude yesterday 20 was not aggressive, I sensed they were still seeking to 21 drive a very hard bargain. My biggest reservation about 22 striking a deal is that BSC would not be prepared to 23 compromise their entitlement to further extension of 24 time and costs from the numerous ongoing issues 25 associated with matters such as: late delivery of design 182 1 by SDS, mis-alignment issues, re-designs arising from 2 unforeseen ground conditions, further MUDFA matters, 3 consents, and the likes. As we all agreed yesterday, the 4 devil (of such a deal) would be in the detail." 5 So in short, it would appear there was 6 an opportunity to do a deal, but you had reservations 7 about it; is that correct? 8 A. There certainly wasn't an opportunity at the meeting 9 I was at, but there was -- the talk -- tie were trying 10 to draw a line in the sand and resolve things so that we 11 could move forward. I think that was why the nine 12 months with six months cost was being tabled. That is 13 certainly my understanding. 14 But I didn't know an awful lot about this, but that 15 was my understanding of it, and my concern was that it 16 would not be a deal that would write off everything 17 else. It would be just for this particular item, that 18 that would then gloss over any other shortcomings on 19 BSC's side. But there would continue to be more claims 20 beyond that because there were a lot of further issues 21 in the pipeline. 22 Q. Thank you. If we just move forward to page 3, I think 23 we can perhaps see the point that you're just making. 24 If we could just zoom out of that a little bit, please. 25 I think -- sorry, it's the page before that. I think 183 1 the pagination of this version is different from the one 2 that I have. So down at the bottom there, is a passage 3 that begins "In conclusion": 4 "In conclusion, I think there is an attraction in 5 trying to draw a line under the position to date and 6 agreeing some sort of reasonable compromise in terms of 7 both time and money by way of a "global deal". If that 8 was to conclude matters on the large number of issues 9 currently in dispute I can see the justification for it. 10 It would also be particularly attractive if it allowed 11 the parties to really get the Infraco Works progressing 12 at the rate required to meet the aspirations of the 13 Stakeholders. However, I do have reservations. 14 (a). At the root of the current disputes are 15 several contractual interpretation issues, particularly 16 in relation to liability for delay. Striking a "global 17 deal" would not address or resolve these matters. They 18 will remain areas of disagreement between the parties. 19 This will almost certainly give rise to further claims 20 and disputes on the same or similar principles." 21 You mentioned there disagreements over contractual 22 interpretation. Can you remember what those were? 23 A. The change mechanism in the contract was particularly 24 complicated. There were at least, in terms of the 25 matters I was dealing with, two types of change, a tie 184 1 change, tie Change Order, and I think the other one was 2 a compensation event, and they had different processes 3 within the contract. 4 There was a lot of discussion between the lawyers 5 and dare I say, I think actually through some of the 6 adjudications, as to how the contract should be 7 interpreted, and in relation to the MUDFA delays, was 8 the MUDFA delay a compensation event or a tie change. 9 There was a lot of legal discussion going on, a lot of 10 legal -- different opinions from different legal 11 practices. QC opinion, and both sides, I would guess 12 certainly on tie side, advising them on these things, 13 and it was complicated, as it often is on construction 14 disputes, and particularly with complicated and bespoke 15 contracts. 16 Q. You mentioned there two types of change, or two types of 17 event, tie changes and compensation events. 18 Were you also dealing with Notified Departures from 19 the Pricing Assumptions? 20 A. That may indeed have been what I meant to say instead of 21 compensation events. I'm trying to recall the terms 22 used in this particular contract. They do vary from 23 contract to contract. 24 Q. Thank you. Why was it that -- we discussed these 25 various contractual difficulties or disputes over 185 1 contractual interpretation. Why was it that you didn't 2 think these could be resolved once and for all at that 3 point in time? 4 A. I recognised that the contract was complicated. I had 5 been in attendance at a number of meetings within the 6 tie organisation with their legal advisers, possibly 7 also at that point with a QC, where we were reviewing 8 the wording and trying to make sure that we were 9 interpreting it correctly. And in terms of how that 10 would impact on my work that I was analysing delay 11 properly and that my reports were written from the 12 correct perspective of how the contract should be 13 applied. 14 Q. If we read on, paragraph (b) in your email: 15 "If BSC is to progress the Infraco Works 'with due 16 expedition and in a timely and efficient manner without 17 delay …' I believe there needs to be a significant change 18 from its current approach. Can this be achieved as part 19 of a "global deal"? If, as I believe tie expects, there 20 will continue to be significant challenges to the 21 timeous delivery of fully integrated, detailed and 22 consented designs, further delays and claims will be 23 inevitable. BSC will continue to deny any 24 responsibility and/or culpability and seek recovery of 25 all additional cost incurred." 186 1 Can you just briefly explain the point that you're 2 making there. 3 A. In terms of the -- the delivery of the design? 4 Q. Yes. And its effect on the scope for a settlement. 5 A. Yes. The actual delivery of the design at that point 6 was seen as being an issue. It was running late. I'm 7 just trying to think back to the time that this was. So 8 it's fairly early in my involvement, but I was becoming 9 aware of the degree to which the design was running 10 late, and that the -- the other problem that we had on 11 the project was that the works were not progressing 12 because of the way the contract was being interpreted by 13 BSC. They were insisting that the delays or the changes 14 which became tie changes had to be resolved and agreed 15 and settled before anything affecting them actually took 16 place. 17 But each item that was to be agreed was becoming 18 a dispute, and was going through Dispute Resolution 19 Procedures in the contract we've got, taking months and 20 months and months, and in the meantime nothing was 21 happening on site. 22 At the end of the day, we're not going to see the 23 project delivered if we don't see spades going into the 24 ground, concrete going into the ground. But that 25 clearly wasn't happening, and it was being tied up by 187 1 the dispute mechanism and the disputes over the 2 contractual interpretation. 3 Q. Would it be fair to say this: that until the design got 4 closer to completion, it was going to be difficult to 5 reach an overall resolution of the extension of time 6 issues? 7 A. I think that if BSC felt that they were exposed to the 8 risk associated with the design coming late, they would 9 be hesitant to strike a deal too soon when other delays, 10 such as the MUDFA delays, were apparently giving them 11 some entitlement under the contract, or at least to make 12 a case under the contract, that they could get extension 13 of time, and in fact they paid for their extra costs 14 while they were on site. 15 The running costs -- well, both organisations, tie, 16 but probably particularly the contractor, would be high. 17 So they had lots of offices, lots of staff, lots of 18 people on site. Every month incurring cost. But the 19 works were not actually being built. And yet, on the 20 face of it, we have a fixed price lump sum contract. 21 That's not good news for a contractor. So he has to try 22 and find some way to recover his costs, or to cover his 23 costs. 24 Q. Yes. 25 If we could look, please, at document CEC00818462. 188 1 We can just see the second email down in that chain 2 is an email from you to Susan Clark, from November 2009. 3 We see from the subject heading that it comes up in the 4 context of the MUDFA Revision 8 mediation. 5 This issue of a possibility of a global settlement 6 arises again. Just in the second paragraph, starting 7 from the second sentence, you say: 8 "There is a lot of sense in trying to, as you say 9 'wipe the slate clean' and continue afresh. I expect 10 BSC will be more than happy to enter into discussions on 11 some form of 'wrap-up' deal. The difficulty 12 I anticipate will be formulating a binding agreement. 13 Trying to put myself in BSC's shoes, if I can 14 secure relief from ..." 15 I take it that's liquidated damages? 16 A. Yes, liquidated and ascertained damages. 17 Q. "... but still keep open all avenues for additional 18 revenue, I have nothing to lose. If I need to sign off 19 now on financial entitlement for many of the events for 20 which I am pursuing time and/or money, I need to be 21 convinced that the deal that I'm negotiating now is the 22 best that I will get now or in the future. My view on 23 this will be strongly coloured by how secure I feel in 24 the position I am currently taking. 25 Please forgive me for repeating myself, but I do 189 1 think that BSC has ongoing concerns over the delivery of 2 design and procurement of the Works. Unless I'm 3 mistaken, I don't think it will feel it is in a position 4 to compromise very much, if indeed at all, on what it 5 considers to be any of its means to secure the maximum 6 extension of time." 7 Is it fair, Mr McAlister, to summarise your view in 8 this way: that by obtaining extensions of time based on 9 utility delays, BSC could protect itself against 10 liability for delays in producing the design? 11 A. Yes, that's exactly the point I was making. 12 Q. Thank you. Could we have document CEC00583955. 13 Now, on screen, Mr McAlister, we have a document 14 that is entitled "Report regarding Forensic Planning 15 Exercise in relation to the Edinburgh Tram Project". It 16 appears to have been prepared by you and Robert Burt, 17 with John Hughes. 18 It's dated 24 December 2009. It's marked as 19 a draft, but Mr Burt confirmed in his written answers 20 that this is the final version, and it was never updated 21 to a completely final version. 22 Are you able to explain why not? 23 A. As I recall, at the end of 2009 we'd done quite a lot of 24 work on a number of different tasks, but tie were asking 25 us to take a pause and asked us if we would summarise 190 1 our work in a report. 2 It is in fact a report with lots of appendices of 3 different reports, feedback, papers, et cetera, that had 4 been put together. So this was basically drawing 5 together our work over that year, and the intention at 6 that point in time is that we would not continue 7 immediately into 2010. That was as far as we were going 8 at that point in time. 9 Q. Do you know why tie had asked for a pause on your work? 10 A. No, I don't think so. I don't think so. 11 Q. Now, you mentioned there that this report has a number 12 of appendices. It's maybe helpful just to note that the 13 report itself runs to 32 pages and it's got 13 or so 14 appendices which I think those were pieces of work that 15 you'd done earlier that year; is that your recollection? 16 A. As I recall. I haven't had the chance or the time to go 17 through it all in preparation for this, but I have 18 flicked through the report itself. 19 Q. I understand. 20 Now, you have explained in your written answers that 21 this report was largely superseded by later work. But 22 I think it's helpful just to look at certain aspects how 23 things stood at that time. 24 If you go to page 4, please -- actually, we can skip 25 that. If we just move, please, to page 10, and we're 191 1 going to look at paragraph 1.6.8. But just before doing 2 that, to put it in context, in this part of your report 3 you'd expressed the view with appropriate mitigation of 4 delay, only a small extension of time for the Infraco 5 consortium was justified. 6 I should observe, just before we move on, that the 7 question of mitigation was a contentious one between the 8 parties; is that correct? 9 A. That is correct. 10 Q. I don't want to get into that quite just now. 11 Just reading 1.6.8: 12 "Since the date of these analyses there have been 13 further delays impacting on the programme and in 14 particular increasing delay arising from later 15 completion of the MUDFA works. This information has 16 recently been communicated to Acutus by tie. Time has 17 not permitted the carrying out of a detailed analysis of 18 this most recent MUDFA delays information. However, tie 19 has asked Acutus to provide its opinion on the impact 20 these revised completion dates may have on the overall 21 estimate of extension of time entitlement." 22 Then 1.6.9: 23 "The MUDFA Revision 8 analysis referred to at 24 paragraph 4.3 of this report identified that Section 1B 25 (Leith Walk to MacDonald Road) was critical and driving 192 1 completion. Updating the MUDFA completion dates for 2 this section increases that assessment by a further 31 3 weeks." 4 1.6.10: 5 "Increased MUDFA delays on other sections of the 6 route also adversely impact on their projected 7 completion dates, but by initial inspection, it would 8 appear that Section 1B continues to be the dominant 9 cause of delay that will drive overall completion. On 10 that basis our opinion on the current estimate of 11 entitlement to extension of time is: 12 a) 52 weeks without mitigation; and 13 b) 34 weeks with mitigation." 14 Then moving on, please, to page 12, paragraph 1.7.2: 15 "Notwithstanding the criticism made at 1.7.1 above, 16 it is clear that there have been a considerable number 17 of delays for which tie carries liability under the 18 terms of the contract and that these should be assessed 19 in relation to consideration of extension of time awards 20 to which the Infraco is fairly entitled. Whilst the 21 Infraco's submissions to date are considered to lack 22 clarity, proper analysis and due contractual process, it 23 is Acutus' opinion that a significant entitlement to 24 extension of time does exist. From the analyses and 25 assessments undertaken it would appear that the dominant 193 1 cause of delay is likely to be completion of the MUDFA 2 works, particularly in section 1B. Notwithstanding that 3 there may be some concurrency issues with other delays 4 that may be attributable to the Infraco, it may prove 5 difficult to successfully use these to reduce the direct 6 impact of the dominant MUDFA delays." 7 Then reading on: 8 "On that basis, the estimates of extension of time 9 entitlement stated at 1.6.9 above are, in Acutus' 10 opinion a fair and reasonable estimate of the Infraco's 11 entitlement as at the end of 2009." 12 So in short, at that point in time Acutus' view was 13 that utility delay was the dominant cause of delay on 14 the project? 15 A. It was looking that way, certainly. There was -- as 16 I recall, there was a utility down Leith Walk area that 17 went through one of the major road junctions, and would 18 take a long time to divert because it was a very busy 19 junction. It would have to be done in different phases, 20 and that was much later than any other work was looking 21 like being at that point in time, and if that was so, 22 that section was going to dictate the overall 23 completion. That was our view at that point in time. 24 Q. Yes. Thank you. 25 Now, if I could ask you, please, to turn to page 7 194 1 of that report. 2 Paragraph 1.5.1: 3 "During the period covered by this report the 4 Infraco has presented three formal claims for extension 5 of time." 6 Then they are listed. Then 1.5.3: 7 "Each of these claims is based on an impacted as- 8 planned programme analysis. This is a recognised form 9 of delay analysis. It has been much criticised in 10 established case law, primarily for the following 11 reasons." 12 Which you then list. 13 If we just move from there back to your question and 14 answer document, please, the code for which is TRI -- 15 there we go. 16 Page 16, question 38. You were asked about the 17 point we've just looked at. You say: 18 "In simple terms, BSC's method of analysis did not 19 include consideration of its own rate of progress on 20 design, approvals, consents and construction. tie 21 directed me to the fact that such matters were 22 experiencing significant delay and the evidence I saw 23 affirmed that. That being so, BSC was in culpable 24 delay, a fact that its delay analysis simply ignored. 25 Such an approach has consistently been criticised in the 195 1 UK courts because it does not establish causation." 2 Now, just in passing, you refer there to BSC being 3 in culpable delay. It's that use of the word 4 "culpable". Had you reached a view that these were 5 delays for which BSC carried the risk under the Infraco 6 contract? 7 A. That was my understanding, yes. 8 Q. Can you recall what was the particular basis on which 9 you considered that BSC carried the risk for that delay? 10 A. The -- as I recall, under the contract the design 11 responsibility for developing the design for the 12 infrastructure works, the civil engineering works, had 13 been transferred to BSC at the point of contract. 14 Therefore, the designer was working for BSC. In 15 effect BSC was now the designer. And therefore if the 16 designer was not delivering the design quickly enough, 17 to meet the construction programme, that was likely to 18 be BSC's liability, and therefore if it was in delay, it 19 was their culpable delay. 20 Q. We will look in a bit more detail at that point later 21 on, but for present purposes do you accept that the 22 allocation of risk for any delay in the design was, at 23 least to some extent, split between the parties under 24 the Infraco contract? 25 A. It would depend on the nature of the -- the cause of the 196 1 delay to the design. If it was just simply that the 2 designer was not delivering on time, was just taking 3 longer, then I would expect that it would be BSC's 4 liability. 5 However, if it was because they had been asked to 6 change design or it was because of other factors that 7 they were entitled to relief for under the contract, 8 then it could still be tie's liability. 9 Q. To come to a view about that, presumably you would need 10 to investigate all of the facts behind any particular 11 delay in the design? 12 A. If I was to be asked to get to the bottom of it, that 13 would be the case. I wasn't particular -- specifically 14 asked to investigate that. It if it was an issue, 15 I would expect that it would be for BSC to make that 16 case. 17 Q. Just the background to all of this, Mr McAlister, is 18 your use in the answer to that question of the phrase 19 "BSC was in culpable delay", and I just wanted to know 20 whether you had come to a view based on a detailed 21 investigation of the facts and consideration of all of 22 the provisions of the Infraco contract dealing with 23 design delay, to come to a view that that particular 24 delay was BSC's. 25 A. You would need to take that on an example -- a specific 197 1 example case. But in terms of interpreting the 2 contract, that's clearly a matter for the lawyers. But 3 it was put to me that the design was running late, the 4 programmes and evidence I saw was that it was running 5 late. It was not a matter that was being addressed in 6 the delay analysis that I was seeing, and nor was 7 I aware that specific claims were being made for 8 extension of time on those matters. 9 So taking all of that together, that is why I've 10 used that expression in the answer to the question that 11 I've been given. But I would be much more careful in 12 the words that I would use if it was to be a written 13 report to be submitted into formal proceedings. 14 Q. Thank you. 15 Now, we looked at the passages there about Infraco's 16 method of delay analysis. Is it fair to say that there 17 was a difference of view between the parties about what 18 was the correct method of delay analysis? 19 A. I don't recall it being discussed in any of the meetings 20 we had. 21 Q. Well -- 22 A. But it certainly was brought out in my reports. 23 Q. If the consortium were presenting extension of time 24 claims based on an impacted as planned analysis, and you 25 were critical of that approach on the grounds that it 198 1 wasn't an appropriate method, that would suggest that 2 there was a difference of view about how one should 3 analyse delay under this contract; is that fair? 4 A. Fair comment, yes. 5 Q. Now, your criticism of the consortium's method of delay 6 analysis, was that addressed to any extent in the MUDFA 7 Revision 8 adjudication before Robert Howie? 8 A. It was certainly presented to him, yes. 9 Q. If we just look at that adjudication decision, please, 10 which is CEC00407650. 11 Now, if we could turn, please, to page 12 of that, 12 are you familiar with this adjudication decision, 13 Mr McAlister? 14 A. I certainly read it at the time, yes. 15 Q. We have got a paragraph there beginning "Appendix D": 16 "Appendix D was criticised by tie because it did not 17 provide a full retrospective delay analysis ..." 18 Pausing there, Appendix D was presumably part of 19 consortium's case for extension of time; is that 20 correct? 21 A. I couldn't say for sure. It certainly could be. 22 Q. It appears to be the case from the context here: 23 "... showing the effect of the Notified Departure, 24 as opposed to other causes, on the overall delay to the 25 Works. In essence, an objection not dissimilar to the 199 1 familiar global claim objection was being advanced. The 2 JV replied to that criticism by pointing out that the 3 Estimate calls for a Prospective analysis of the likely 4 delay, and so, in the nature of things, precluded any 5 retrospective delay analysis from which one could derive 6 final and correct answers to questions of causation, 7 critical paths and so forth. Therefore, argued the JV, 8 the criticisms advanced by tie in relation to these 9 matters are ill-founded." 10 Then just reading on the next paragraph: 11 "On this question, I agree with the JV." 12 Now, to what extent did you regard that decision and 13 reasoning by Mr Howie as addressing your criticism of 14 the consortium's method of delay analysis? 15 A. I thought that Mr Howie's suggestion that the -- we were 16 proposing a retrospective analysis was inaccurate. 17 I don't recall us discussing it at the time. There are 18 many methods of delay analysis. The impacted as planned 19 is the simplest and most basic of them. But the 20 contract, as I saw it, required a prospective analysis, 21 but not the simple impacted as planned version. 22 We were projecting forward to prospective completion 23 dates. Normally when people talk about retrospective 24 analysis, we are looking after the event, looking 25 backwards to see what actually happened. And that was 200 1 not what I was promoting as being a more appropriate 2 methodology. 3 As I say, Mr Howie didn't discuss any of this in 4 front of us. This is his written decision. Nothing 5 seemed to turn on it from my perspective, but I did 6 think it was a slightly strange thing for him to say, 7 but it was his choice of words and my interpretation of 8 them. 9 Q. If we could turn it the other way round, did you read 10 what Mr Howie says in that paragraph as an endorsement 11 of the impacted as planned method of analysis that had 12 been used by the consortium? 13 A. No, I didn't read that much into it. I think he was 14 simply making the point that he didn't think the 15 contract called for a retrospective analysis, 16 and I would have agreed with him on that if he had put 17 that to me. 18 Q. When you carried out delay analysis at a later stage, 19 after Mr Howie had produced this decision, which I think 20 is dated July 2010, did you consider yourself to be 21 using a method of delay analysis which Mr Howie had 22 decided was wrong? 23 A. No, I don't think so. 24 Q. Did you consider that your approach to analysis of delay 25 was consistent with Mr Howie's decision? 201 1 A. I felt so. Mr Howie's decision for the main works was 2 that the BSC had failed to prove its case and awarded 3 them no extension of time. He's written many pages of 4 words about why he reached that decision, but taking it 5 at its simplest level, they made their case, they 6 presented their delay analysis, and Mr Howie was not 7 persuaded by it, and therefore he awarded nothing. 8 Q. Bear with me for a moment, please, Mr McAlister. 9 (Pause) 10 If we could return, please, to your report, which is 11 CEC00583955. Go to page 5 of that report, please. 12 You have a section of the report entitled 13 "Performance and behaviour of the Infraco". Just 14 reading from there, 1.4.1: 15 "tie raised a number of concerns regarding the 16 performance and behaviour of the Infraco in relation to 17 the aforementioned contract provisions and asked Acutus 18 to provide opinion on whether such criticisms were 19 justified." 20 Then turning over the page, page 3, paragraph (a): 21 "Generally, the Infraco has complied with its 22 obligations in relation to notification of delays it 23 claims are attributable to tie ..." 24 Then there are references to parts of the contract: 25 "However, it has universally failed in its 202 1 obligation to notify tie of delays for which it carries 2 liability." 3 Again, if I could just ask you, what delays 4 attributable to BSC did you and/or tie have in mind? 5 A. Clearly there were parts of the works that hadn't 6 commenced for whatever reason, and BSC's claims were 7 providing no explanation or no reason why that was not 8 advancing. But those works were clearly experiencing 9 delay. And I think I used the word "universally" 10 somewhat -- in criticising them. There were no notices 11 of delay from BSC for things that were its 12 responsibility. Yet the wording of the contract 13 requires it to notify tie of any delays. 14 Q. I think you refer to Clause 65.10 of the Infraco 15 contract in that regard. 16 Can I ask this. If the consortium -- if BSC had 17 failed to give notice of these matters, on what basis 18 had you come to the view that these other delays 19 existed? 20 A. As I just explained, you walk out on to the site. 21 Nothing is happening. And yet you examine the claims or 22 the notices of delay that have been submitted, and there 23 is no reference to what you've seen hasn't started and 24 you think: why? 25 Q. If we could return, please, to your question and answer 203 1 document, which is -- there we have it. 2 At page 18, question 42, the answer to which is at 3 the top of that page. Just reading from the second 4 line: 5 "BSC's claims lacked substantiation which only it 6 could provide, yet it was refusing to do so. It was 7 evident that BSC had its own challenges to overcome and 8 that there were many significant delays for which it 9 appeared to carry liability, but most of the information 10 and evidence associated with such matters was in BSC's 11 possession. It was refusing to divulge it." 12 That's essentially the point that you've just made; 13 is that correct? 14 A. Yes. As I recall, I had one meeting with BSC where we 15 asked to meet with BSC along with representatives of its 16 designers, and it was to explore why certain works 17 hadn't advanced. It appeared it was because the design 18 for those works had not been completed, certified ready 19 for construction, and we wanted to explore that with the 20 designers. 21 So we had that meeting. Again, the reaction was the 22 designers seemed to be quite guarded in their response. 23 They certainly understand the point I made, and the 24 meeting ended with agreeing to go away and look at the 25 matter and then provide some information. 204 1 But as far as I'm aware, nothing further appeared 2 following that discussion. 3 Q. Thank you. 4 Now, your answer there has talked about information 5 coming from the consortium or the lack of information 6 coming from the consortium about design delay and so on. 7 If we could just look at your answer to question 44, 8 which is at page 18 of your written answers, and we're 9 talking here about records held by tie. Your answer is: 10 "To loosely quote several authoritative texts ... 11 "any party who experiences formal dispute resolution 12 learns three hard lessons": (a) the importance of records 13 b) the importance of records (c) the importance of 14 records ... 15 CEC/tie had entered into a form of contract (fixed 16 price/lump sum design and build) that sought to transfer 17 a large proportion of risk to the contractor. As part 18 of this the design team initially employed by CEC/tie 19 was transferred to BSC. Consequently, tie now had less 20 visibility of what was actually being done and achieved 21 in terms of developing and delivering design to allow 22 construction to progress. As noted in answers to other 23 questions, BSC's claims for extension of time and 24 related additional payment, generally, ignored any 25 difficulties it was experiencing with design delivery. 205 1 I could see evidence that, in general, this was the case 2 but tie had very limited access to the contemporaneous 3 records of BSC and its designers. I advised tie to 4 gather as much information as it could, including what 5 its staff could see and hear as they went about their 6 daily business." 7 So just reading that, it would appear to be your 8 view that tie's lack of information about design delay 9 was at least in part because design had moved over to 10 become the responsibility of the consortium; is that 11 correct? 12 A. That is correct. 13 Q. Was it your understanding that that arrangement made it 14 difficult for tie to know what was going on with 15 production of the design? 16 A. tie were no longer managing the designer. The designer 17 was now being managed by the contractor. Therefore, 18 yes, it had much less involvement. That's what the 19 contract anticipated. 20 Q. You said in this answer that you could see evidence that 21 in general BSC were experiencing difficulty with design 22 delivery. You referred a moment ago to a meeting you 23 had with the consortium's designers, where it wasn't 24 perhaps a very clear answer coming back. Was there any 25 other evidence that you can recall that indicated the 206 1 consortium were experiencing difficulty with delivery of 2 the design? 3 A. I quote, I think, one particular example in some of my 4 reports, the Russell Road Bridge, just because to me it 5 was a very simple and clear example. But there were 6 a number of them throughout the project. 7 When I'm undertaking delay analysis and I come 8 across things that don't look right, or there are no 9 reasons for, as a construction professional, I think 10 things don't just happen. They don't just slip. There 11 has to be a reason. 12 Therefore I was asking question of those who were 13 involved at -- on different sections of the project: do 14 you know why this bridge hasn't started; do you know why 15 the design is taking so long to resolve in a particular 16 area? And tie's staff were coming back to me and 17 saying: well, I was at a meeting the last day, and I got 18 the impression that certain documents perhaps hadn't 19 been submitted for approval; or I heard someone 20 discussing in the office that there was a problem 21 with -- I'm just -- this is a random example, perhaps 22 a problem with a subcontractor or co-ordinating design 23 between different subcontractors; or someone was 24 exploring a different methodology that they considered 25 was more cost effective. 207 1 There were a number of things that were coming back, 2 and I thought in each case: we need evidence; is this 3 just hearsay or is there some substance behind those 4 reasons? That was why I was asking people to try and 5 find out what they could, and also suggesting to tie 6 that if those things were causes of delay, they needed 7 to record them because if we end up in the future in 8 litigation, or dare I say, sitting here today, is there 9 evidence as opposed to hearsay from the time? 10 Q. I think it's right that you gave tie some advice about 11 the sort of records they should keep; is that correct? 12 A. Yes. That's correct. 13 Q. Can you give us an indication in broad terms of the 14 advice that you gave them about record-keeping? 15 A. We certainly suggested that they routinely took progress 16 photographs of all areas of the site. What tends to 17 happen in construction projects often is that when 18 things are happening, people take photographs of it to 19 show the change and what is happening. But very often 20 when you're looking for evidence as to, in this case 21 something could have been happening, but yet it wasn't, 22 if you've got, let's say you're talking about 23 a six-month period when there didn't seem to be any 24 reason something couldn't progress, if you could table 25 six-monthly photographs that show the site clearly 208 1 available, open, nothing in the way, then that's quite 2 persuasive evidence that there was nothing causing an 3 obstruction or preventing progress. 4 So it was that sort of thing. But also all these 5 discussions or observations that they were picking up 6 from meetings that they were attending or things they 7 were overhearing. Capture it. Get it into a diary 8 note. Compile a database. And each -- I think what 9 eventually happened was that tie's planning manager was 10 tasked with having a -- I think it was a weekly 11 conference call with project managers from each of the 12 sections, to say: right, what has happened in your area 13 during the last week; what hasn't happened; what could 14 have happened that hasn't happened? And to start to log 15 that information. 16 So it was that getting more detailed robust complete 17 record in place, which in my experience, in trying to 18 resolve disputes, it's very important evidence to help 19 make the case and hopefully get to the real facts. 20 Q. Can we take it from the fact you were giving advice 21 about this that tie hadn't been keeping records of that 22 nature beforehand? 23 A. They had been keeping some records, but, as you would 24 expect, individuals in different sections would keep 25 different records. What we were trying to suggest was 209 1 that the way the contract was evolving into a very 2 difficult contractual situation, that was heading for 3 formal Dispute Resolution Procedures, processes, that 4 they would need to get the records up to the highest 5 level that they possibly could. 6 Q. To what extent were the recommendations you were making 7 about record-keeping going above and beyond what would 8 be kept as a matter of course on a project like this? 9 A. The record-keeping in projects varies. That's certainly 10 my experience. In some projects record-keeping is very 11 poor. In some projects record-keeping is very good. It 12 depends on the management, the leadership and the 13 individuals involved. Some people are quite disciplined 14 in keeping good records. Others not so. 15 I think it would be fair to say on this project it 16 was not atypical. It was not the best, but it was not 17 the worst. 18 Q. So on that spectrum, from good records to bad records, 19 where would you put tie? 20 A. On a contract of this nature, I would say probably -- 21 I would put them at least in the middle. Maybe slightly 22 better than that, because normally on a design and build 23 contract, the employer organisation has a fairly light 24 touch because they have passed the management, the 25 responsibilities and the risk down the line to the 210 1 contractor. And in fact I would suggest they don't want 2 to interfere too much for fear of giving rise to change 3 and the contractor having entitlement to come back to 4 them for more money. 5 Q. As well as being the employer under the Infraco 6 contract, tie also had a project management 7 responsibility for the project as far as the Council 8 were concerned. 9 Can you express a view on how their record-keeping 10 compared with what you would typically see done by an 11 experienced project manager running a project of this 12 scale and importance? 13 A. I'm pausing there just to think of a sort of equivalent 14 type arrangement. I suppose probably what would be most 15 appropriate in respect to works of this nature in 16 Scotland might be projects involving Transport Scotland 17 in the way that they would manage a design and build 18 type project. 19 I think in relation to that, probably tie would be 20 not dissimilar. I'm not trying to defend them here. 21 I'm trying to be objective. 22 No, I think I would -- certainly I wouldn't put them 23 at any extreme, certainly. They would be in the centre, 24 sort of middle ground of range of what I would expect. 25 Q. Maybe just approach it this way. Would you expect to be 211 1 giving advice of the kind you gave on record-keeping to 2 a professional and experienced project management 3 company? 4 A. On a contract with disputes of this nature, yes, 5 definitely. I think it would be -- and the 6 record-keeping would never be good enough. You really 7 would -- you know, you can never have too many records. 8 Hopefully you've got them well ordered so they can be 9 used, but, yes, you're aiming for perfection really if 10 you're in the dispute world, and you never find it. 11 MR MCCLELLAND: Thank you. I note the time, my Lord. It 12 would be an appropriate time to stop. 13 CHAIR OF THE INQUIRY: Yes. Thank you very much, 14 Mr McAlister. We're going to break for the day and 15 resume again at 9.30 tomorrow. If you could be here 16 some time before then, so you're ready to start at 9.30. 17 Thank you very much. 18 A. Thank you, my Lord. 19 (4.31 pm) 20 (The hearing adjourned until Wednesday, 22 November 2017 at 21 9.30 am) 22 23 24 25 212 1 INDEX 2 PAGE 3 MR DAVID MACKAY (sworn) ..............................1 4 5 Examination by MR LAKE ........................2 6 7 Examination by MR DUNLOP QC .................149 8 9 Examination by MR FAIRLEY ...................152 10 11 MR IAIN MCALISTER (sworn) ..........................164 12 13 Examination by MR MCCLELLAND ................165 14 15 16 17 18 19 20 21 22 23 24 25 213