Construction contracts lawyer
As a builder, it’s important to understand how delays and disruptions to a project are treated in law and what you could be liable for. It is essential you engage a professional, thorough and experienced construction contract’s lawyer.
First, some definitions.
Delay measures the time a project may be stopped for or extended.
Disruption measures the disturbance or interruption to a project that makes it take longer to complete than initially planned.
Within Australia, the UK-based Society of Construction Law’s Delay and Disruption Protocol has found some standing with judges as they assess the matter in court.
You can find a full outline of the protocol HERE
Clarity is key
Make sure your contract is very clear about how delays and disruptions are to be handled and that any clauses comply with building law and the principles of the protocol mentioned above. Becker Watt Lawyers can advise you on this and would welcome your call if you need help.
Your contract should outline whether a delay needs to be notified in writing and the period within which that notification must happen. Make sure you stick to this timeframe or the courts may find in favour of your opposing party.
Your contract should outline who is responsible for particular types of delay and you need to make sure this is clearly outlined.
Keep a diary of all events relating to a delay so you can present clear evidence in court if you need to. This could include a summary of the communication, events and changes that occurred in relation to the job.
The Time Impact Analysis methodology is the most common approach used to assess the impact of a delay. It is done using an existing schedule, updated by a project scheduler using the additional activities or changes. It’s important that these changes are communicated regularly to other parties involved in the project to prevent future disagreements about the impact of particular activities on the project timeline.
Courts have varied in their view about whether delays should be assessed prospectively or retrospectively. Make sure your contract is clear on what’s expected on this issue.
In order for a claim of disruption to occur, there must be a clear causal link between the disruptive event and a change to the normal progress of work. This could happen by comparing the rate of work that happened during normal periods and the period in which disruption occurred or by using the expert testimony of on-site staff and supporting documents.
Acceleration involves a contractor speeding up their work on order to minimise the impact of delays and disruption. Your contract should stipulate under what circumstances acceleration will occur and what compensation it will incur.
Disruption and delay are an inevitable part of construction work. It’s important that you have the contract, procedures and documentation in place to contain their impact and protect your business.