It’s time to dump the delay and distruption protocol
Ten years ago the Society of Construction Law published its delay and disruption protocol. It usefully raised the difficulties associated with the analysis of delay, however it has also attracted much criticism.
In particular, the protocol recommends that when undertaking after-the-event delay analysis and when “deciding entitlement to EOT [extension of time], the adjudicator, judge or arbitrator should as far as is practicable, put him/herself in the position of the CA [contract administrator] at the time the employer risk event occurred”.
This would allow determination of what, if any, EOT could or should have been recognised at the time. In doing so, the protocol recognises that the results may not match the as-built programme.
I have always had a problem with this, and as a delay analyst I do not hypothesise over what EOT may have been awarded when the facts of what actually occurred are known. The recommendation conflicts with the requirements of the JCT contract. The architect has a period after practical completion to review the effect of all relevant events. The architect would surely consider what actually occurred.
In the recent case of Lilly vs Mackay, Mr Justice Akenhead concurred with the above, saying: “If at the latest stage it is clear that the relevant event in question has actually delayed the works by, say, 10 weeks it would be an extraordinary state of affairs if the extension of time granted was anything other than 10 weeks.”
The protocol has limped along for 10 years. It is time to move on and approach delay analysis simply and pragmatically.
Stephen Lowsley, delay analyst