Tuesday, 26 July 2016

The Society of Construction Law: Mark Woodward Smith

The Society of Construction Law has issued a draft second edition of the Delay and Disruption Protocol, 14 years after the first edition was issued. Back then, its aim was ambitious. It was that, in time, “most contracts will adopt the Protocol’s guidance as the best way to deal with delay and disruption issues”.

 It stated that the number of disputes could be reduced if there was a transparent and unified approach to the programme and the site records. It contained a great deal of detail about the way a programme should be prepared and gave a preferred method of delay analysis - time impact analysis - identifying the shortcomings with other methods. Although it stated this would only work if network programmes and sufficient records had been maintained throughout the project, as recommended by the protocol. On keeping records, it recommended agreeing up front what these should be: differentiating between small and medium to high value/high complexity projects.

It was subject to some criticism at the time as:

 A charter for programming experts (with its preferred (considered to be expensive) method of delay analysis)

Administratively onerous and unrealistic regarding records and
Not worth the paper it was written on as it was not and should never be a contract document.

Has its aim to reduce disputes been realised?

Much has changed in the world of construction claims since 2002. There appears to be no fewer disputes but the method of resolving them has changed dramatically. Adjudication is firmly embedded as the forum of choice. In 2002 it was in its infancy. It is therefore arguably cheaper to deal with disputes on delay and disruption now than it was pre-2002. Have parties embraced recommendations on transparency and detail of programming and records? Contractors remain suspicious as it is not often apparent what the upside is for them. The idea of agreeing at the start of a contract which records will form the basis of a claim may not start the project on the right foot.

The protocol has not changed the atmosphere of “claim and defend” in certain standard forms of contract, although much has been done with different forms of procurement involving a more collaborative approach.

In fact, as well as giving that guidance, the protocol stated general legal principles of delay and disruption claims in relation to concurrent delay: global claims, ownership of float; relevance of tender allowances in assessing compensation, to name just a few. It also contained a good glossary of “claims terminology”.