A NEW LEGAL protocol for managing delay and disruption on construction projects has been launched by the Society of Construction Law (SCL).
The courts have been calling on the construction industry to improve its methods for dealing with disputes that arise from delays. The protocol advises on how to minimise damage caused by delay and disruption at contract drafting and negotiation stages.
Disputes can be substantially reduced by the introduction of a 'transparent and unified approach to the understanding of programmed works, and the consequences of delay and disruption, ' the protocol states.
The issues addressed in the protocol are controversial and do not have absolute answers, said solicitor in law firm Freshfields Bruckhaus Deringer, Hamish Lal.
'The protocol is not intended to be a contract document, ' said Lal. 'Nor does it purport to take precedence over any express terms of a contract or be an authoritative statement of the law.' Instead, according to the SCL, the protocol 'represents a scheme for dealing with delay and disruption issues that is balanced and viable'.
In practice, 'this means that if the parties agree with the philosophy and methodology of the protocol then they must make their own contractual provisions to include it', Lal added.
While the protocol provides model clauses dealing with the preparation, submission, update and revision of the contractor's programme, it does not provide a full set of standard clauses dealing with the core principles.
Drafting committees of the standard form contracts may decide to amend their contracts to reflect the core principles, but in the meantime, parties wishing to make use of the core principles will need to make significant amendments to the widely used standard forms, or to draft bespoke construction contracts.
Lal expects uptake of the protocol to be driven by clients, as they will ultimately bear the increase in costs associated with it. The protocol recommends that a sum be built into the contract price, payable to the contractor on provision of a proper programme, with further payments for proper updates.
INFOPLUS www. nceplus.co.uk
Dealing with delays and issues arising from the protocol will be tackled in the first of NCE's series of legal seminars to be held next spring (see page20).