Article in Building Magazine, 20 December 2002

The boys done good

by Richard Bayfield, Paul Brough, Anthony Caletka, Jonathan Douglas, Peter Johnson, Stuart Jordan, Stuart Nash, Keith Pickavance, Jim Pragnell, David Richards and Jeremy Winter

WELL, IT’S OUT. AFTER A GESTATION PERIOD slightly longer than an elephant’s the Society of Construction Law’s Delay and Disruption Protocol was at last born on 16th October at the Institution of Civil Engineers.

We understand that some issues remain contentious. But the industry has no single view on any of the major delay and disruption issues and neither do the commentators.

Now that the protocol is published, we - as a body - have no intention of joining in discussions about individual issues. If, however, we can ask one thing, it would be that the protocol is read and considered as a whole.

Although the commentators have diverse views on the substantive issues, the single thread that runs through them is a tendency to take our treatment of an individual issue and consider it in the context of existing contracts and practice. We have come up with a scheme for the administration of delay and disruption issues, which is also a scheme for the active management of change in any construction project. It goes without saying that it is in our view the most fair and balanced scheme available, and that it offers good clarity and certainty of outcome. There are three tests here:

* Is it clear? (Does it indeed bring clarity to the legal grey areas?)

* Is it comprehensive? (Does it assist you all the way from the change event to determination of time and money entitlement)

* Is it, on the whole, fair?

By its mere existence any scheme that passes these tests is of immediate benefit to the industry and its customers. That is undeniable, surely.

We are hoping that take-up of the protocol will help us get away from the thinking that fairness is best found by lumping all the contractor delays, the employer risk delays and the float into three piles and apportioning guilt (and penalty) accordingly. You can do this retrospectively but it is of no help whatsoever in administering contracts and it entails exactly the uncertainties that the standard forms tried to get away from in the first place.

In various ways, the standard forms impose specific time obligations ameliorated by specific entitlement to extensions of time on specified grounds, which is precisely the approach the protocol seeks to support.

Against that background we have been interested to read that our treatment of, for instance, float and extensions of time might be unfair to one party or another, may or may not follow the line in one of the standard form contracts, may or may not be consistent with case law and may even not work, at least in connection with employer prevention.

The protocol, however, sets out simple sequential analysis of each individual delay event to assess the impact of each event on the state of the works at the moment the event occurs. This enables both parties to understand the precise way in which the analysis of each event (including employer prevention) will or will not result in an extension of time for that event alone and therefore the point at which delay damages may be levied. In our view this is both clear and workable.

In a similar fashion, discussions about whether we have followed any standard forms on any individual issues or whether we have followed case law are interesting but irrelevant as it was not part of the task to be faithful to either the forms or the law on them. Readers will, however, see a great deal in the protocol that simply clarifies what they understand to be the meaning of existing contracts and case law, and this is because both the forms and the case law contain a great deal of good practical sense.

This is not a radical document but follows standard forms in more ways than one. The forms have the currency of widespread use because they offer practical solutions. We have made no blind assumptions on the take-up of the protocol but have tried to draft it so that it will gain currency in the same way. We don’t expect the debate to end, it’s just that we won’t be part of it.

Above all, we look forward to seeing the principles of the protocol implemented. Copies of the protocol can be downloaded at www.eotprotocol.com. It’s worth a look.

Reproduced with permission from Building Magazine (http://www.building.co.uk)