Disrupted? Prove it!

Disruption (too often confused or intermingled with a delay claim) is notoriously difficult to establish.1 It can be crystal clear to everyone on the site that the works are not progressing efficiently but proving that a disruptive event (or events) has caused a loss and quantifying that loss can be challenging.

In this Insight we examine the key aspects of bringing a successful disruption claim and look at what records can be used to establish whether the events complained of have actually resulted in a loss.

What is disruption?

Disruption is defined by the second edition of the Society of Construction Law's Protocol (the "SCL Protocol") as:

"a disturbance, hindrance or interruption to a Contractor's normal working methods, resulting in lower efficiency. Disruption claims relate to loss of productivity in the execution of particular activities. Because of the disruption, these work activities are not able to be carried out as efficiently as reasonably planned (or as possible)."2

At the core of a disruption claim are the additional costs incurred, over and above the planned resources, as a result of not being able to work efficiently as planned.

Disruption and delay are distinct from each other. Disruption may cause critical delay but, all too frequently, it causes sub-critical delay or inefficiencies which are not picked up by a critical delay analysis. As a result, winning your extension of time claim does not result in the recovery of the losses associated with the disruption on site.

As Hudson's Building and Engineering Construction Contracts states:

"The distinction between delay and disruption is important, but rarely articulated, and is to an extent a matter of definition. Delay is usually used to mean a delay to the completion date, which presupposes that the activity which was delayed was on the critical path. Disruption to progress may or may not cause a delay to overall completion, depending on whether the activity delayed is on the critical path as explained above, but will result in additional cost where labour or plant is under-utilised as a consequence of the event."3 [Emphasis added]

It is not uncommon for disruption to fall lower down the list of priorities in claims than the extension of time claim. However, all too often it is disruption rather than critical delay which has caused much of the losses suffered.

What do I need to establish?

Perhaps the most helpful guidance from the courts on disruption (in the context of global or total cost claims which disruption claims are often associated with), is from Mr Justice Akenhead in the Walter Lilly case.4 Whilst to lawyers this guidance should be "common sense", it is amazing how often the basics get forgotten, buried beneath superficially impressive expert evidence.

Mr Justice Akenhead emphasised three elements, all of which have to be proved on the balance of possibilities. These are as follows:

Events occurred which entitle it to loss and expense; That those events caused disruption (and/or delay); That the disruption caused loss and/or expense (or damage) to be incurred.5 We will examine these in turn. However, before doing that, the question that all too often has the answer no lawyer wants to hear is "Did you comply with the notification provisions in the contract"?

Have the relevant...