The Society of Construction Law released the second edition of its Delay and Disruption Protocol in early March. Progress has been made but perhaps not enough

Hamish Lal

‘What is this? What has changed? And do you think this is a good document?” These were the questions that hit me from a client when the Society of Construction Law released the second edition of the Delay and Disruption Protocol in early March this year. The client then asked: “Who is this protocol really for – adjudicators, experts or lay clients?”

These are all super questions and ones that readers may have also asked themselves. So, let us take a closer look.

The protocol wants to provide guidance consistent with good practice but does not want to be treated as a benchmark of good practice or as a contractual document. It is a very comprehensive document that provides 22 core principles telling readers how various issues that typically arise in the context of delay and disruption ought to treated, managed and quantified. Such issues include programmes, record keeping, delay analysis, float, concurrency, compensation for prolongation, and the use of tender allowances in the assessment of prolongation. Standing back a little, there are three fundamental changes in this second edition that are especially noteworthy.

Firstly, there is now a clear shift in direction relating to so-called time impact analysis (TIA), which is often criticised for producing synthetic or artificial prospective entitlements so that employers refuse to award an extension of time (and contractors then have no option but to raise a dispute). The new protocol says that TIA does not need to be used where the “analysis is carried out time-distant from the delay event or its effect” and instead other delay assessment methods based on “effect and cause” and a sound common sense perspective ought to be used.

There is now a general acceptance or greater promotion of ‘effect and cause’ approaches to the assessment of delay quantified

This is a major change in the second edition and will delight many in the industry who struggle to derive a competent TIA and please those who find the results of a TIA unacceptable, synthetic or artificial. However, there will be some readers who actually prefer a prospective assessment and will be unhappy that TIA has been downgraded – they will say that with good records and good project management a TIA can and should be usefully carried out at any stage.

The marginalisation of TIA is accompanied by an increase in the use of methods of delay analysis that start from the extent of the delay actually suffered and try to work out the most likely cause or causes of such delay. Put another way, there is now a general acceptance or greater promotion of “effect and cause” approaches to the assessment of delay.

Secondly, the new protocol is happy to have prospective extensions of time but insists that the loss/expense associated with them ought to be based on actual loss. Some readers may feel that this dichotomy is not so good since such an approach will prevent agreement on claims during the works and thus lead to an increase in disputes. Such readers are likely to be keen users of NEC3 which, of course, favours a prospective entitlement approach to time and money.

Thirdly, the new protocol includes an important caveat that a common sense perspective ought to be applied to any analysis. This is a clever addition and means an analysis can now be undermined or challenged if it offends the common sense view of the critical path, facts or evidence.

The new protocol includes an important caveat that a common sense perspective ought to be applied to any analysis

So is this progress?

The new protocol is a good document. Some readers may have been happier if it had been more confident and asserted a tangible right to be treated as a “benchmark of best practice” since that is how, in practice, it is likely to be treated by experts, adjudicators, arbitrators and judges. The desire to be a “balanced” document does not disguise the fact that the protocol downgrades TIA and wants less reliance on complex software.

The new protocol may have been written for a wide audience but one feels that it is primarily a manual for claims consultants and expert witnesses (who often compete on the basis that their analysis better complies with the protocol than their opponent’s analysis). It is an excellent document for lawyers, adjudicators, arbitrators and judges because it informs them about what a good delay analyst ought to do.

Sadly, the new protocol does not go far enough and tell adjudicators, arbitrators and judges how to evaluate delay when the programmes are out of date or when the prospective delay analysis machinery has broken down – this is a common occurrence in NEC3 contracts where the accepted programme is often at odds with actual progress and facts or where the prospective TIA model has broken down (because the compensation event mechanism has broken down). A common sense approach to this scenario would tend to look at actual delay and actual loss and so apply a retrospective “effect and cause” approach.

Hamish Lal is a partner in the international arbitration practice at Akin Gump