In October 2002, the Society of Construction Law published the first edition of Delay and Disruption Protocol. The intention of the first edition was to provide guidance on some of the issues that arise in construction contracts in relation to extensions of time and/or delays. As with the second edition, it was not intended to be a contract document or a statement of law, but instead represents a “scheme for dealing with delay and disruption issues that is balanced and viable”.
In February 2017, some 15 years after the first publication and subsequently Rider 1, the second edition has been published, following various developments and changes in the field of disputes relating to delay and disruption in construction. The changes can be summarised as follows:
1. There is no longer one preferred delay analysis methodology. Instead, there is a list of factors that should be considered before considering the most appropriate methodology for those particular circumstances, factors considered include available contemporaneous information and the format of available documents. An overview of the various methodologies currently in use is provided;
2. The guidance on record keeping throughout the duration of a project has now been developed. The focus is on the general principles which are applicable to all projects, of varying sizes and complexity;
3. There is an addition of a new core principle – The contemporaneous submission and assessment of extension of time claims (rather than a ‘wait and see’ approach);
4. The approach to concurrent delay has been updated to reflect recent case law;
5. Recognition of an apparent trend for the construction legal industry and the courts to take a more lenient approach towards global claims; and
6. The second edition has developed the guidance on disruption and a broader list of different types of analyses that might be used to support a disruption claim. As with the first edition, the ‘measured mile’ analysis remains the preferred approach.
This article seeks to provide a brief overview and commentary of some of the key areas that have been updated since the 2002 edition