Judicial Consideration of the SCL Delay and Disruption Protocol

The SCL Delay and Disruption Protocol has been referred to in only eight cases: four English, three Australian, and one from Hong Kong.

(a) Balfour Beatty Construction v London Borough of Lambeth

In Balfour Beatty Construction v London Borough of Lambeth, HH Judge Humphrey Lloyd QC noted that the adjudicator whose decision was subject to the TCC proceedings had relied upon the Protocol (which was at the relevant time in the form of a consultative draft).

Key Point:

• HH Judge Humphrey Lloyd QC’s Observation: "I was not referred to this consultative document [that is, the Protocol] and I am not concerned with it. No doubt because it is still in consultative or draft form, the adjudicator at one point appears only to have used it for a convenient description of some of the main methods available for delay analysis. However, it is clear that from paragraph 6.5 of his decision that the adjudicator then used one of them, namely the 'collapsed as-built' analysis (or a variant of it), ie the third on the list, to decide the criticality of each Event."
• Outcome: The adjudicator’s reliance upon the Protocol was noted, but the details or merits of the Protocol were not considered.

(b) Leighton Contractors v Stelux Holdings

In Leighton Contractors v Stelux Holdings, Reyes J considered an appeal from an arbitrator’s award where the arbitrator had rejected the time slice method of prospective delay analysis adopted by the contractor’s delay expert.

Key Points:

• Mr Westbrook’s Complaint: The Arbitrator wholly rejected the time slice methodology despite both parties accepting its appropriateness and investing resources in it.
• Reyes J’s Judgment: The Arbitrator found against Leighton on actual delay and considered time slice methodology of little help given Leighton’s pleaded case and the facts. The Arbitrator did not wholly ignore time slice methodology.

Outcome:

• The case was focused on whether the arbitrator had considered the contractor’s evidence and submissions on delay, not on the Protocol itself.

(c) Great Eastern Hotel Company Ltd v John Laing Construction

In Great Eastern Hotel v John Laing Construction, the defendants sought to rely upon the provisions of the Protocol concerned with the analysis of concurrent delay.

Key Point:

• HH Judge Wilcox’s Rejection: The Protocol was not considered because, on the facts, there was no concurrent delay. The defendants were liable for all relevant delays, save in limited respects.

Outcome:

• The judgment gave no consideration to the terms of the Protocol itself.

(d) 620 Collins Street v Abigroup Contractors

In 620 Collins Street v Abigroup Contractors, Osborn J considered an appeal from an arbitrator’s award, based on alleged misconduct by the arbitrator.

Key Point:

• Osborn J’s Conclusion: The arbitrator’s approach satisfied the guidelines for retrospective delay analysis as per the UK Society of Construction Law [2002], providing a reasonable basis for assessing the effect of the claimed delays.

Outcome:

• The judgment did not discuss the Protocol beyond mentioning its guidelines.

(e) Mirant Asia-Pacific Construction v Ove Arup

In Mirant Asia-Pacific Construction v Ove Arup, HH Judge Toulmin CMG QC referred to the Protocol to support propositions about critical path analysis.

Key Points:

• Propositions Supported by Protocol: There may be more than one critical path for a project. Critical path analysis on an accurately updated programme may reduce disputes over changes during a construction project.

Outcome:

• The judgment did not examine the Protocol’s provisions in detail but endorsed some aspects.

(f) Adyard Abu Dhabi v SD Marine Service

In Adyard Abu Dhabi v SD Marine Services, the ship-builder and its delay expert sought to rely upon the Protocol to claim a full EOT due to employer-related delays.

Key Point:

• Hamblen J’s Rejection: The Protocol is not in general use in construction contracts, has not been approved in any reported case, and does not take precedence over contract terms.

Outcome:

• The Protocol was deemed of little assistance in this case due to its limited application and lack of general acceptance.

(g) SMEC Australia v McConnell Dowell Constructors

In SMEC Australia v McConnell Dowell Constructors, Vickery J referred to the plaintiffs’ use of the 'Measured Mile' analysis based on the Protocol to support a disruption/loss of productivity claim.

Key Points:

• Vickery J’s Judgment: The plaintiffs' pleading, when considered with their expert report, was sufficiently articulated, leading to the failure of the strike-out application. The court did not closely scrutinize the 'Measured Mile' approach for this application.

Outcome:

• The judgment did not delve into the disruption aspects of the Protocol, focusing instead on the sufficiency of the plaintiffs' pleadings.

(h) Alstom v Yokogawa Australia

In Alstom v Yokogawa Australia, Bleby J referenced the Protocol in discussing delay experts' understandings of critical path, logic links, and resource leveling.

Key Points:

• Bleby J’s Consideration: Evaluated the Protocol's recommendations on appropriate methods of delay analysis, including after-the-event analysis methods. Used the Protocol to reject a lesser-known method ('resource analysis') and support the 'as planned vs as built' approach.

Outcome:

• The Protocol served as a basis for method selection in delay analysis, highlighting its utility as a reference.

Overall, the case law is largely neutral regarding the Protocol’s operation and effectiveness. The Protocol’s aim is to reduce disputes over delay and disruption by establishing a common approach, not to dictate courtroom procedures. The limited case law demonstrates its role as a reference for courts and tribunals and experts providing evidence. This shows the evolution of the protocol towards a positive journey of large acceptance in future.