In June of this year, the Society of Construction Law (“SCL”) sent its members a draft of the second edition of its widely recognised Delay and Disruption Protocol. It follows the publication of a Rider published late last year about which this author wrote a previous article. Although the “2016 Draft” is meant to be consultatory, there are a number of improvements from the “2002 Edition” worth exploring before the final and definitive version is published sometime in the future. There have been many changes not all of which will be covered in this article and, in any case, I will only focus on changes other than those already included in the Rider.

In June 2016, the Society of Construction Law (“SCL”) sent its members a draft of the second edition of its widely recognised Delay and Disruption Protocol.[1] It follows the publication of a Rider published late last year about which this author wrote a previous article. Although the “2016 Draft” is meant to be consultatory, there are a number of improvements from the “2002 Edition” worth exploring before the final and definitive version is published sometime in the future. There have been many changes not all of which will be covered in this article and, in any case, I will only focus on changes other than those already included in the Rider.

Structure

The first thing to notice is that the draft is organised differently from the 2002 Edition. The table below is a broad strokes cross-reference between the two versions. Please note that it is not a perfect cross-reference since most topics have been amended, expanded or moved.

Records and Programmes

In general, the 2016 Draft is focused on providing, “practical and principled guidance on proportionate measures […] in relation to all projects, regardless of complexity or scale.”[2]  It offers the user options to respond to certain issues and makes specific recommendations wherever possible. This is especially prevalent in the robustness of the updated guidance on records and programming in Section 2.

Clear Agreement

The first notable improvement in Section 2 is that it recommends, “clear agreement on the type of records that should be kept […] prior to the time [the parties] enter into the contract (or at least at the outset of the works).”[3] It recommends a proportionate and adequate approach to this agreement and spells out several guidelines,[4] including, among others:

1. agreeing on responsibilities for production and checks;
2. agreeing on format;
3. agreeing on ownership;
4. establishing record keeping requirements prior to preparing the tender documents to allow accurate pricing from tenderers;
5. the contemporaneous generation of records relevant to delay and disruption events;
6. that certain types of records should contain facts only and offer no opinions;
7. the need to update records as necessary;
8. the need to maintain records for an appropriate amount of time; and
9. maintaining a collaborative document management system database.

These guidelines aim to deter disputes over the level of record-keeping and to reduce uncertainty when discussing an EoT. Whereas it falls short of recommending the use of Building Information Modelling (“BIM”) processes, it expressly recognises its growing use and recommends specific agreement regarding its content, use and ownership if such processes are adopted.

Documentation

Regarding programmes, little has changed other than a re-organisation of the section to make it more straightforward. With that said, the drafters have added new guidelines such as[5]:

1. the use of supplemental tools when works are output driven;
2. the incorporation of narratives to link programmes with method statements;
3. the Contract Administrator to specify the contractual requirements a proposed programme or update does not meet before labelling it as inadequate (as opposed to just giving reasons);
4. saving updated programmes in native format as opposed to PDF; and
5. that asking the Contractor to propose ways to mend delays is not the same as an instruction to accelerate at the Employer’s cost.

In addition to programmes, there are also progress records, resource records, cost records, correspondence and administration records (e.g., instructions, notices, variations, bonds, technical documents, milestone documents and claims, etc.) and, contract and tender documents. Each one of these six categories and sub-categories of documents has its own description, requirements and raison d’être.

Both Section 2 and Appendix C of the 2016 Draft enter into considerable detail in explaining each category of record. For example, Appendix B lists seven different types or stages of the programme (e.g., tender programme, proposed programme, accepted programme, etc.), seven different supplemental detailed programmes (e.g., design, delivery, testing and commissioning, etc.) and seven different types of explanatory records that “explain in words, graphics, and spreadsheets key considerations and assumptions underpinning the programmes,”[6] such as narratives, progress curves, marked-up drawings and sketches, BIM files, etc.

Loss of Profits and Unabsorbed Overheads

Another notable improvement is the cost records guidance about loss of profits and unabsorbed head office overheads.[7] In general terms, cost records should have enough detail to be able to link costs with delay or disruption events. However, when considering loss of profits and unabsorbed head office overheads, even when the Contractor uses a formula, it still needs to disclose certain information – to substantiate his claim – that it may not want to disclose, such as company accounts, tendering history, business plans, etc. The 2016 Draft therefore proposes the agreement of “relevant rates in the contract,” for example, “staff rates to be charged in the event of an Employer Delay to Completion”.[8]

A clause setting such rates may be construed as a ‘Brown clause’ for liquidated prolongation costs. This is a clause that fixes a daily or weekly rate to compensate the Contractor for prolongation costs caused by Employer delays.[9] This concept is not new to the Protocol[10] but its application to loss of profit and arguably head office overheads for Employer Delay to Completion is.

When developing such a clause, drafters must have two thoughts in mind. The first is that the Contractor may not be able to obtain liquidated relief for loss of profit or unabsorbed head office overheads for mere Employer Delays to Progress.[11] Only when the Employer causes Delay to Completion would the Contractor be able to obtain relief on these heads of claim.[12] The second, applicable in England, is whether it complies with the most recent case on liquidated damages: Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis.[13] To withstand the test in this case, drafters must ensure that the rates they set are not “out of all proportion” from the legitimate interest in enforcing the Employer’s obligation not to prevent the Contractor from performing its obligations to get on with the work.

Concurrent Delay

One of the most important changes in the Protocol’s approach comes in its new treatment of concurrent delay at Section 3.10. In this author’s opinion, however, the SCL’s approach may be controversial for reasons of both form and substance.

Ambiguity in the text and structure of the Section

The general rule was clear in the 2002 Edition. It recommended that, when met with concurrent delay, the Contractor should be entitled to an EoT for Employer Delays to Completion. The Protocol reiterated the rule when discussing the specific scenarios of ‘true concurrency’ and what used to be called ‘concurrent effect’.

Whereas the general rule remains as a Core Principle in the 2016 Draft,[14] it also includes an exception to the general rule which starts with the example in Section 3.10.7:

“[…] a Contractor Risk Event will result in five weeks Delay to Completion, delaying the contract completion date from 21 January to 25 February. Independently and a few weeks later, a variation is instructed on behalf of the Employer which, in the absence of the preceding Contractor Risk Event, would result in Delay to Completion from 6 February to 20 February.”

At first instance, it is not clear whether the periods the example mentions relate to risk events, periods of delay or periods of project overrun. In this author’s opinion, the way to interpret the example without running into incongruities is by assuming that the variation works performed in February constitute also the Employer’s period of delay. In addition, the period of project overrun from 21 January to 25 February must also constitute the period of Contractor Delay. This means that both periods of delay happen after the original contract completion date, which gives the impression that, in this example, the SCL is referring only to concurrent delay that occurs after the contract completion date. Also, an Employer Delay that occurs during a period of project overrun caused by a previous Contractor Delay is not concurrency.

Substance of the apparent recommendation

However, the most important aspect of the example in Section 3.10.7 is the recommendation that follows in Sections 3.10.9 and 3.10.10, which states that the Contractor should not obtain an EoT because, in the example, the Employer Delay occurs within a period of Contractor Delay. That is, if the Contractor Delay starts before the Employer Delay and finishes after, then the Contractor should not obtain an EoT for that period of Employer Delay. The 2016 Draft reasons that, in these circumstances, “the only effective cause of Delay to Completion is the Contractor Risk Event,”[15] so that “[c]oncurrent delay only arises where the Employer Risk Event is shown to have caused Delay to Completion or, in other words, caused critical delay (i.e. it is on the longest path) to completion.”[16]

The first question that this reasoning raises is that, if there is only one effective cause of delay, would there be any concurrency? The straightforward answer, which is actually provided by the 2016 Draft itself,[17] is: no. However, this logic simply favours whichever delay comes first and takes no account of various concerns raised throughout the years such as “causative potency”[18] and the prevention principle discussed in further detail below.[19]

Leaving the discussion about ‘effective cause’ aside, this reasoning can very easily be applied to situations both pre and post completion date. If that is indeed the case, the SCL is suggesting that concurrency can never happen if the Contractor Delay starts earlier and is longer than the Employer Delay. The Contractor would only obtain an EoT (1) when the Employer Delay ends after the end of the Contractor Delay, and (2) when the Employer Delay occurs within the Contractor Delay but adds to the already existing Contractor Delay, thereby extending the date of completion beyond the project overrun caused by the Contractor. However, neither of these describe a situation of concurrent delay anyway because the Employer Delay would be extra.

It may be that the SCL’s new proposed recommendation is intended to assess whether it is fair and reasonable to grant an EoT to a Contractor for a post completion Employer Delay that could have been avoided had the Contractor finished on time. A useful example that helps illustrate this assessment is inclement weather (i.e., “exceptionally adverse climatic conditions” in FIDIC nomenclature) where the cause of delay is neutral. As a matter of FIDIC standard form interpretation, the Contractor would be due an EoT for this event under Sub-clause 8.4. In obiter dictum, Colman J asked in Balfour Beatty v Chestermount[20] this same question, whether it would be fair and reasonable to grant an EoT for a relevant event that would have been “wholly avoided had the contractor completed the works” on time. Colman J uses the example of a storm during a period of project overrun. Therefore, it appears that this exception would only apply in situations where the delay is a non-compensable Employer Risk Event.[21] This was the recommendation that the SCL gave in the 2002 Edition.[22]

However, the example in the 2016 Draft is a variation and, giving the Employer a ‘blank check’ to instruct variations during a period of Contractor Delay or, in any event, after the original contract completion date, amounts to a windfall that does not respond to any consideration of fairness or reasonableness. Furthermore, it has been asked[23] how Balfour Beatty v Chestermount could survive if Colman J had started from the premise that no EoT would be granted in situations of an Employer Delay occurring during a period of Contractor Delay because that was precisely the situation he was considering in deciding that an EoT would be calculated on a ‘net’ basis.

In addition, the ‘but for’ justification at the heart of the 2016 Draft’s recommendation[24] only takes account of one side of the equation. It says, “[…] the Employer Delay will not result in the works being completed later than would otherwise have been the case because the works were already going to be delayed by a greater period because of the Contractor Delay to Completion.”[25] In other words, ‘but for’ the Employer Delay, would the Contractor still be delayed? For the 2016 Draft, the answer is yes. Therefore, there is no concurrency. However, if applied consistently to any situation of concurrent delay, including ‘true concurrency’, this reasoning would result in the end of concurrency as we know it because it is always the case in concurrency that without the Employer Delay, the works would already be delayed by the Contractor Delay to Completion. This is because both delays are considered critical hence why they are concurrent.

The problem with this reasoning is that the opposite is also true: ‘but for’ the Contractor Delay, the project would still be delayed for the period of delay caused by the Employer. If each of the Employer and Contractor Delays are by this logic effective causes of delay on their own so that each lies on the critical path, concurrency is undeniable. When both delay periods sit on the critical path, a project is delayed in the absence of either delay due to the existence of the other. For example, ‘but for’ lack of access to site, the works are still delayed due to slow mobilisation. The opposite is also true. Therefore, if the Employer Delay would extend the date of completion despite the Contractor Delay, even if it is by a shorter time, then the Employer cannot simply obtain a windfall for causing critical delay and effectively helping prevent the project from completing on time.

Finally, the recommendation does not hold its ground against the prevention principle. It would be against the principle to give the Employer a windfall in circumstances where he has effectively contributed in preventing the Contractor from completing the project on time. When holding that apportionment does not reflect English law, Akenhead J stated in Walter Lilly v Mackay[26] that:

“Part of the logic […] is that many of the Relevant Events [i.e., Employer Risk Events] would otherwise amount to acts of prevention and that it would be wrong in principle to construe [the EoT clause] on the basis that the Contractor should be denied a full extension of time in those circumstances.”

He then stated that nothing suggested that an EoT should be reduced in case of concurrent delay. Although he was referring to City Inn[27] type apportionment, what the SCL is effectively suggesting is to ignore the prevention principle altogether and “apportion” all of the risk to the Contractor just because the Employer’s delay is shorter even though it could very well be an effective cause of delay.

Whereas it is the SCL’s prerogative to recommend what it considers preferable, this author hopes that the discussion about the way in which the recommendation is drafted and justified continues. The practical implications of a recommendation that swims so forcefully against the current could result in an increase of unnecessary disputes.

Disruption

Finally, another area where the 2016 Draft has excelled is in Disruption Analysis, now with its own Section.[28] This special treatment reflects its status as a squarely separate albeit related concept in need of its own discussion and set of recommendations. The objective of disruption analysis is to demonstrate productivity loss in the execution of work activities in either labour or plant in order to claim the loss and expense caused by the Employer-triggered disruption.[29] The quantum is the “difference between realistic and achievable productivity and that which was actually achieved in carrying out the impacted work activities”.[30]

However, the real upgrade comes with the list of disruption analysis methods, their straightforward explanations and how they are compared with each other. In addition, their preference is dictated by their order in the list from most recommended option to the least.

There are two groups of methods: (1) productivity-based methods measure loss of productivity in resources before the loss is priced and (2) cost-based methods measures the difference in actual versus planned cost first.[31] For productivity-based methods, the 2016 Draft explores: (1) project specific studies such as the measured mile – which keeps its title as the recommended method – earned value and programme analyses, work or trade sampling and system dynamics modelling; (2) project-comparison studies; and (3) industry studies.[32] For cost-based methods, only estimated v incurred cost and estimated v used labour are mentioned.[33]

Vocabulary

One of the most useful contributions of the 2002 Edition was that it provided the industry with a vocabulary with which to discuss precisely these types of complex and divisive issues. It has already been mentioned how the 2016 Draft has discarded the use of the term ‘concurrent effect’[34] even though the existence of the concept is still acknowledged.[35] However, the use of an Appendix[36] to compile a list of definitions and glossary has not been abandoned.

There are six new terms in the Appendix: two of them relate to programming, i.e., ‘level of effort’ and ‘programme narrative’; two more relate to delay analysis, i.e., ‘as-planned versus as-built windows’ and ‘time slice analysis’; and the last one is ‘disruption event’. However, some new terms appear elsewhere such as those used to describe previously unrecognised types of delay analysis, e.g., time slice windows analysis, longest path analysis and earned value analysis. In addition, the enhancement of certain sections such as the aforementioned records and programmes section and the disruption section, together with the section regarding delay analysis time-distant from the delay event discussed in this author’s previous article on the Rider, will surely help frame the delay and disruption discussion for years to come.

Conclusion

Whereas the 2016 Consultation Draft of the Second Edition of the SCL’s Delay and Disruption Protocol includes some very welcome enhancements, there are other areas in which there is still room for improvement.
[1] SCL’s 2016 Consultation Draft of the Delay and Disruption Protocol (“2016 Draft”).

[2] 2016 Draft at paragraph A of Introduction, page 1.

[3] 2016 Draft at Core Principle 1, page 5 and Section 2.5, page 12.

[4] 2016 Draft at Section 2.5, page 12.

[5] 2016 Draft at Sections 2.51, 2.53, 2.58, 2.61 and 2.65 at pages 19 to 21.

[6] 2016 Draft at Appendix B, Section 1.4, page 71.

[7] 2016 Draft at Section 2.29, page 15.

[8] 2016 Draft at Section 2.30, page 16.

[9] See Chappell, David, et al, Building Law Encyclopaedia (2009), page 330.

[10] 2002 Edition at Section 1.8.5, page 21.

[11] See Chappell, David, et al, Building Law Encyclopaedia (2009), page 330.

[12] See Pickavance, Keith, Delay and Disruption in Construction Contracts (2010) Fourth Edition, paragraph 21-017.

[13] [2015] UKSC 67. For further commentary on this case, see Mangan, Steve, The Highest UK Court Reviews The Law On Penalties (24/05/2016) Reviewslawonpenalties/SM/2016(5)/1/CLAL.

[14] 2016 Draft at Core Principle 9, page 6 and Section 3.10, page 26.

[15] 2016 Draft at Section 3.10.9, page 28.

[16] 2016 Draft at Section 3.10.10, page 28.

[17] 2016 Draft at Section 3.10.10, page 28.

[18] See Marrin QC, John, Concurrent Delay (2002) 18 Const LJ No. 6 436.

[19] Walter Lilly v Mackay [2012] EWHC 1773 (TCC) at paragraph 370.

[20] 62 B.L.R. 1, at 34 and 35; 32 Con. L.R. 139; (1993) 9 Const. L.J. 117.

[21] See Sherman, Henry, The SCL Protocol and concurrent delay (23 July 2003) (http://www.cms-lawnow.com/ealerts/2003/07/the-scl-protocol-and-concurrent-delay).

[22] Section 1.4.8.

[23] See Sherman, ibid.

[24] Sections 3.10.9 and 3.10.10, page 28.

[25] 2016 Draft at Section 3.10.9, page 28.

[26] [2012] EWHC 1773 (TCC) at paragraph 370.

[27] City Inn Limited v Shepherd Construction Limited, [2010] CSIH 68.

[28] 2016 Draft at Section 7, pages 50 to 56.

[29] 2016 Draft at Section 7.6, pages 50 and 51.

[30] 2016 Draft at Section 7.9, page 51.

[31] 2016 Draft at Section 7.12, page 52.

[32] 2016 Draft at Section 7.16 – 7.20, pages 53 to 55.

[33] 2016 Draft at Section 7.21 – 7.24, pages 55 and 56.

[34] 2002 Edition at Section 1.4.6, page 16.

[35] 2016 Draft at Section 3.10.4, page 27.

[36] 2016 Draft at Appendix A, page 59.

In July of this year, the Society of Construction Law (SCL) published Rider 1 (“the Rider”) of its 2002 Delay and Disruption Protocol (“the Protocol”). The Rider’s Preamble lists a series of amendments to the Protocol intended to serve as an update reflecting (a) legal and industry practice developments, (b) feedback, (c) technological developments, (d) increase in scale of larger projects, and (e) international use of the Protocol. The Rider is intended to serve as the first part of the amendments to the Protocol, the totality of which should feature in a consolidated and updated version of the Protocol later this year.[1]

In July of this year, the Society of Construction Law (SCL) published Rider 1 (“the Rider”) of its 2002 Delay and Disruption Protocol (“the Protocol”). The Rider’s Preamble lists a series of amendments to the Protocol intended to serve as an update reflecting (a) legal and industry practice developments, (b) feedback, (c) technological developments, (d) increase in scale of larger projects, and (e) international use of the Protocol. The Rider is intended to serve as the first part of the amendments to the Protocol, the totality of which should feature in a consolidated and updated version of the Protocol later this year.[1]

The main changes

The main changes addressed by this Rider are described in the Preamble as follows:

• Time impact analysis has stopped being the expressed preferred recommended method of delay analysis wherever circumstances permit and has been substituted by a more pragmatic approach, i.e., the method is still the first choice for contemporary analysis, but not in retrospective delay analysis where the effects of the delay are known and the choice of method should depend on a number of factors.
• The list of delay analysis methods has increased from the original four (as-planned v as-built, impacted as-planned, collapsed as-built and time impact analysis) to six. Two new retrospective analysis methods have been added: time slice window analysis and longest path analysis. The as-planned v as-built analysis (which is also retrospective) has been amended to make it a windows approach.

Time impact delay analysis limited to contemporaneous assessment

As mentioned above, one of the main updates is the SCL’s abandonment in Section 3 of its general recommendation to use the time impact delay analysis method in assessing both prospective and retrospective delay. The Protocol explained that it was “the best technique for determining the amount of the Extension of Time that a Contractor should have been granted at the time an Employer Risk Event occurred”.[2]

However, because it is a prospective approach, time impact analysis produces theoretical entitlements that set out the likely, as opposed to the actual, effect of a delaying event.[3] Therefore, the result of a time impact analysis may be at odds with what actually happened during the project. Furthermore, in addition to time impact analysis being both lengthy and expensive, it is only useful in awarding extension of time (“EoT”) entitlements and not costs, so that, the interested party would need to invest in an additional investigation to evaluate costs.[4]

Furthermore, the new approach is good news to those in the field who have rightly realised the many drawbacks of prescribing a particular method. The main criticisms have been summarised as follows[5]:

• By endorsing time impact analysis, the SCL has given undue confidence to claimants in what may amount to hypothetical and therefore potentially inaccurate entitlements to EoT, thus promoting instead of discouraging disputes.
• The Protocol contradicts itself by both recommending contemporaneous assessments of EoTs and suggesting that a contemporaneous or prospective analysis is still possible even years after the event and its effects have been felt.

By retracting its express general endorsement of time impact analysis, the Rider dissuades intransigence during disputes. Also, Section 4 of the Rider prescribes that prospective analyses are not relevant or appropriate in EoT applications assessed after completion of the works or considerably after the delay event or its impact thus removing the contradiction.

This is not to say that the SCL does not recommend the use of time impact analysis at all. In fact, the method is still the preferred method for determining the prospective or likely impact of delay events in a contemporaneous analysis and is still the preferred method where “Employer Risk Events and Contractor Risk Events occur sequentially but have concurrent effects”.[6]

The common-sense approach

The new recommendation when assessing EoTs is that users should take a common-sense approach based on an appropriate method of delay analysis. Common sense should be applied when both the analysis is undertaken during the course of the project and after the delay event.

As with the Protocol, the drafters of the Rider have determined that, although prospective approaches to delay analysis may be misleading, “clarity was of greater value for all parties than a ‘wait and see approach’” [7] so that their recommendation that EoTs should be assessed and awarded contemporaneously or “as close in time as possible to the delay event that gives rise to the application”[8] stands. In fact, there is now an express discouragement of the ‘wait and see’ approach.[9] However, where an EoT is assessed at a time distant from the delay event, Section 4 of the Rider has reviewed its approach in some ways and expanded the menu of methods to be used.

Section 4 lists criteria to be used to determine the method of delay on a particular project. The list has remained the same as in the Protocol except for the deletion of the “programmer’s skill level and familiarity with the project” and the addition of “the forum in which the assessment is being made”.[10] These may prove to be quite sensible recommendations; under English law at least, a programmer will presumably be obliged to exercise reasonably competent skill and care and parties seeking to analyse delay are well advised to consider whether a robust albeit costly, time-consuming or complicated method is really that necessary at whatever the stage of the dispute. For example, at the claims stage or perhaps even before then, certainty of the analysis may be outweighed by the need to control costs and make a simple point so that a low cost but less precise method that produces a straightforward result may be a more sensible idea.

In addition, the Rider no longer recommends particular methods of analysis depending on whether liquidated damages are based on actual or likely delay.

The six options of retrospective delay analysis

One of the most useful additions is Section 4.4 of the Rider. It provides a handy general explanation of the characteristics that describe and differentiate the various delay analysis methods. First of all, it explains that some methods require the analyst to identify the cause of delay before establishing its impact on the project (i.e., “cause and effect”) whereas others take the opposite approach, that is, identifying the delay before attributing a cause to it (i.e., “effect and cause”). It adds that the critical path must be identified because that is where the analyst will find the delays that impact the completion of the works (or a milestones thereof).  Critical paths may be “a sequence or chain of activities through the remaining works” or a “collection of related work activities to distinct sequences.”[11] Also, whereas programming software may be very useful, the Rider warns that a practical analysis of the relevant facts and historical data may be more reliable. In addition, the Section provides a description of prospective and retrospective delay analysis. The former aims to get at the likely impact of delay events, i.e., what could happen, whereas the latter seeks to arrive at the actual impact of the delay events, i.e., what actually happened in the project. To complete the explanation this Section lists three options to determine criticality, which depend on the point of view the analyst takes in the timeline of the project:

1. Purely prospective critical path positions the analyst at the beginning of the project and does not consider any progress that happened during the works.
2. Contemporaneous critical path takes into account work progress and changes in strategy during the course of the project.
3. Retrospective critical path takes a view from the end of the project.

Finally, Sections 4.5 to 4.12 provide a robust explanation of the six methods of analysis:

1. Impacted As-planned
2. Time Impact
3. Time Slice Window
4. As-planned v As-built Window
5. Longest Path
6. Collapsed As-built

The Table in Section 4.5 is a particularly useful summary on the determinative characteristics of each method, mainly, whether it is a “cause and effect” or “effect and cause” analysis, how the critical path and delay impact are determined and what each method requires.

The two new methods in the group are the time slice windows and longest path analyses.  In addition, the as-planned v as-built analysis has now been upgraded to a windows analysis to become one of the two windows analyses on the list.

As an afterthought, the Rider also mentions, though without describing, five other methods which may be adopted having considered the criteria in Section 4.3. These are:

1. Summary level as-planned versus as-built analysis
2. Time chainage analysis
3. Line of balance analysis
4. Resource curve analysis
5. Earned value analysis

Conclusion

Taken together, a delay analyst will be well positioned to determine the most appropriate and sensible method to use for an analysis. The Rider and the future amendments to the rest of the Protocol promise to be very useful in the industry. Together with the additional amendments expected later this year, we hope the updated SCL Delay and Disruption Protocol becomes a welcomed addition to this specialised field of analysis for years to come.

[1] http://www.scl.org.uk/resources

[2] Protocol at 4.8.

[3] See David Falkenstern, ¨Delay and Disruption Protocol: Easy Rider¨ on Building Magazine Issue No 33 dated 21 August 2015 at page 38; and David Barry, “The SCL Delay and Disruption Protocol—10 years on” on Construction Law Journal Vol 29 No 5 [2013] at page 368

[4] David Barry, “The SCL Delay and Disruption Protocol—10 years on” on Construction Law Journal Vol 29 No 5 [2013] at page 368.

[5] David Barry, “The SCL Delay and Disruption Protocol—10 years on” on Construction Law Journal Vol 29 No 5 [2013] at page 368.

[6] Rider 1 at 3.2.12.

[7] Rider 1 Preamble at paragraph 11.

[8] Protocol at 1.2.4.

[9] Rider 1 Core Principles at paragraph 3.

[10] Rider 1 at 4.3.

[11] Rider 1 at 4.4.2.