Society of Construction Law updates useful protocol on delay and disruption

The second edition of the protocol takes into account developments in the law, technology and construction industry practice since the first edition was published in 2002. The revisions also reflect industry feedback, the increase in both number and scale of large projects over the years and "anecdotal evidence" that it is being used for international, as well as UK, projects.

Although the protocol does not have legal force, construction law expert Neal Morris  of Pinsent Masons, the law firm behind Out-Law.com, said that it would provide useful guidance to parties when dealing with delay and disruption.

"It is first of all important to remember that the protocol is not 'law' and is rarely, if ever, expressly incorporated into construction contracts," he said. "That said, this new protocol helpfully shines some further light into one of construction law's darkest corners."

Rather than overhauling the original protocol, the second edition updates and clarifies guidance around issues including concurrent delay, disruption analysis and record-keeping. In particular, it attempts to provide a definition of concurrency; a subject on which a great deal of commentary exists without dealing with the meaning of the term in any real detail, according to Morris.

The protocol defines concurrency as the occurrence of two or more delay events at the same time, one of which is an 'employer risk' event and the other a 'contractor risk' event. The effects of both these events must be felt at the same time. However, the SCL also recognises that the term is often also used to describe a situation where two or more delay events arise at different times, with the effect felt at the same time. In either case, it stresses that concurrent delay will not become an issue unless both employer and contractor risk events lead or will lead to a delay to completion.

Building on this definition, the protocol then deals with the question of whether employer delay is an effective cause of delay to completion where it occurs after the contractor delay begins, but then continues in parallel with the contractor delay. It recommends that, in these circumstances, the employer risk event should not be seen as causing delay to completion and that therefore there is no concurrency in these cases.

The updated protocol also focuses more sharply on methods of delay analysis, including a helpful list of analysis methods with explanations and comparisons of their relative merits. It then goes on to provide guidance as to which method is the most appropriate. Regardless of which method is used, the overriding objective is to ensure that any conclusions reached are appropriate from a "common sense perspective in light of the facts", according to the protocol.

The importance of record keeping from a practical perspective is also stressed in the updated protocol. It provides guidelines on the maintenance and storage of records and programmes, including the type of records to be agreed at the outset and how programmes should be agreed and updated. The protocol encourages all parties to the contract to prepare, store and maintain accurate records with a sufficient level of detail, proportionate to the scale of the project.