peter evans partnership
Practice Note 1: Rider 1 to the SCL
Delay and Disruption Protocol has just
been published, so what’s new?
Paul Thornton, our head of Forensic Delay and Programme Analysis,
reviews the main changes and comments upon the likely impact on
Engineers and Contractors.
Background
On 16 October 2002, the Society of Construction
Law published its Delay and Disruption Protocol
(the “Old Protocol”), introduced as: “a scheme for
dealing with delay and disruption issues that is
balanced and viable”. Although it has been
regularly cited in Contractors’ claims in the
Middle East, a rising tide of practitioners have
objected to, as one stated, the:
“inappropriately strong endorsement of the time
impact analysis method of delay analysis within
the post contract dispute environment”.
Following discussion at a Society of Construction
Law’s 10-year anniversary event in London in
April 2013, it was agreed that a revised edition
would be required. Consequently, a Committee
has just released, a few days ago, what is dubbed
the Rider 1 to the SCL Delay and Disruption
Protocol, or “New Protocol”.
The Committee’s Objectives
The main objective of the New Protocol is to
downgrade the importance of Time Impact
Analysis in favour of other fact-based methods in
assessing an Extension of Time (“EOT”) retro-
spectively. The Committee has therefore sought
to make changes to the Core Principles and
introduce methods, that were not originally
included, to retrospectively analyse the delay.
Core Principle 12 of the Old Protocol recomm-
ended how to deal with an EOT assessment after
the event, namely:
© Peter Evans FZ LLC Page 1
27 July 2015
“The Protocol recommends that, in deciding
entitlement to EOT, the adjudicator, judge or
arbitrator should, so far as is practicable, put him/
herself in the position of the CA at the time the
Employer Risk Event occurred.”
This Core Principle, more than any other,
suggested that Time Impact Analysis (“TIA”) was
the best method to retrospectively analyse delay
to a project. There is little doubt that TIA is a
preferred method to prospectively claim an EOT
during the works, but Core Principle 12 of the
New Protocol suggests:
“...[after the event] the parties have knowledge of
the facts which superseded the delay event
(rather than these being forecast, which is the
basis of a time impact analysis) and these facts
should be factored into the delay analysis to
arrive at conclusions which are consistent with the
way in which the Project in fact progressed.”
This crystallises the Committee’s preference for
using fact-based approaches to measure the
impact of delay retrospectively. The Committee
have felt it necessary to add elsewhere that a
“common sense approach” should be adopted.
New Definitions proposed
Whilst the use of common sense was obviously
implied in the Old Protocol, the new wording
perhaps recognises the fact that the application
of TIA has sometimes been the cause of over-
confidence by claimants, resulting in unsus-
tainable claims being put forward. The New
Protocol therefore goes some way to helping
! www.peterevans.ae
peter evans partnership
practitioners understand what “common sense”
1is, by defining some commonly used terms.
Firstly, the New Protocol defines the mechanics of
how an analysis may take place. Methods either
identify and describe an event and then establish
its impact (“Cause and Effect”) or identify the
critical path and establish what might have
caused the delay (“Effect and Cause”). The Cause
and Effect methods align with the Old Protocol’s
Core Principle 12 and the Effect and Cause
methods strongly align with the newly drafted
Core Principle 12.
Secondly, the New Protocol defines three ways to
determine the critical path:
“Purely prospective critical path assessments
adopt the perspective at the outset of the project
only and take no account of progress achieved.”
“Contemporaneous critical path assessments
adopt an evolving perspective over the course of
the works and take account of the effect that both
historical progress and changes in the strategy for
the future prosecution of the works have on
predicted criticality.”
“Retrospective critical path assessments adopt
the perspective evident at the end of the project
(or window of time).”
Whilst the retrospective assessment definition is
entirely new, the contemporaneous assessment is
effectively used to separate TIA from retro-
spective methods. Thirdly, the New Protocol
defines two methods to determine the impacts of
delays:
“The prospective delay analysis identifies the
likely impact of historical progress or delay events
on the completion milestones.”
“A retrospective delay analysis identifies the
actual impact of the delay events on the
identified actual or as-built critical path.”
1 The principle of common sense is considered by the UK courts as a foundation to the law of causation. Lord
Osborne in City Inn Ltd v. Shepherd Construction Ltd [2010] BLR 473, Para 42 provides an apt quote: “the decision
as to whether the relevant event possesses such causative effect is an issue of fact which is to be resolved, not by the
application of philosophical principles of causation, but rather by the application of principles of common-sense.”
© Peter Evans FZ LLC
27 July 2015
By defining how each method determines the
critical path and impact of delay, there is now
good guidance about each method. Perhaps
practitioners’ discord against the Old Protocol
developed because poor choice of methodology
led to unfavourable results in proceedings.
Six methods replace four
The Old Protocol suggested four methods to
analyse delay, which strongly favoured TIA above
the other methods. It placed limitations on each
of the other methods, for example:
• The Impacted As-planned …”is restricted
due to the theoretical nature of the projected
delays”
• The As-Planned v As-Built … “is useful as a
starting point in relation to other, more
complex methods of analysis”
• The Collapsed As-Built … “is restricted by
its inability to identify concurrency, re-
sequencing, redistribution of resources or
acceleration.”
Whereas the Old Protocol at 4.8, elevates TIA as
the best method for retrospective analysis:
“the amount of EOT may not precisely reflect the
actual delay suffered by the Contractor. That does
not mean that time impact analysis generates
hypothetical results – it generates results showing
entitlement”
The New Protocol, however, suggests six
methods; The ‘As-Planned v As-Built’ method has
been redefined as ‘As-Planned v As-Built
Windows Analysis’, and there are now two
additional methods: ‘Time Slice Windows
Analysis’ and the ‘Longest Path’. The table below
puts these methods in the context of the
definitions already discussed.
Page 2
! www.peterevans.ae
peter evans partnership
It is interesting to note that the three new
methods put forward are “Effect and Cause”
methods that strongly align to the newly drafted
Core Principle 12. In my experience, using these
methods allows practitioners to focus the delay
analysis and avoid superfluous analysis of delay
events that are not necessarily linked to the
actual critical delays experienced on the project.
The Effect on Contractors and
Engineers
The New Protocol will have quite profound
consequences. It is currently common to all the
major standard forms of contract, that any interim
EOT cannot be reduced in his final award. As the
Protocol at 3.2.4 states:
“it is difficult if not impossible to withdraw an
EOT once granted”.
The Engineer therefore faces difficulty if it
transpires that an interim EOT award is signif-
icantly more than the finally provable delay,
which is entirely plausible given that prospective
analysis can produce an unrealistic picture of the
impacts of delay.
In practice, particularly in the Middle East, an
Engineer receiving an EOT claim will often tend
to veer on the side of caution when awarding an
interim EOT or, indeed, not make an assessment
at all if he can avoid doing so.
Prospectively
Contemporaneously
Determination of
the Critical Path
Retrospectively
*The three new “Effect & Cause” methods put forward in the New Protocol
2 29 Const. L.J., Issue 5 (2013) “The SCL Delay and Disruption Protocol —10 years on”
© Peter Evans FZ LLC
27 July 2015
The New Protocol elevates, from the Guidance
Section to a Core Principle, the need to deal with
delay events as soon as possible and, as per the
Old Protocol, cautions against using the “Wait
and see approach”. The New Protocol at 3.2.4,
suggests assessment of EOTs ought to be
contemporaneous:
“the CA [Contract Administrator] will award only
the minimum EOT that can be justified at the
time.” [emphasis added as wording has changed]
This effectively advocates an iterative approach
for the Engineer to award EOTs.
It would appear that this was a hotly debated
subject, given that one of the committee
members stated in a paper, following the 10th
anniversary meeting:
“In revising the protocol, ... the first thing I would
change; i.e. if a prospective “impact assessment”
is not carried out contemporaneously, then one
should lose the right to apply it after the fact.
Certain popular contracts would benefit from a
similar adjustment.”2
Whilst this could incentivise the Contractor to
submit EOT claims prospectively it would do little
to motivate an Engineer to agree an EOT.
Perhaps, the wider problem of the standard
forms of contract including FIDIC, is that
Engineers are powerless to adjust, specifically
reduce, EOTs as new facts become apparent.
Determination of the Delay Impact
Prospectively Retrospectively
Impacted As-Planned
Analysis
As-Planned v As-Built
Time Impact Analysis
Windows Analysis*
Collapsed As-Built
Time Slice Windows Analysis
Analysis*
Longest Path*
Page 3
! www.peterevans.ae
peter evans partnership 27 July 2015

The Committee encourages the Contractor to put
forward prospective analyses during the works, in
line with whatever the contract requires, and then
potentially refine its claim with a retrospective
fact-based method. To satisfy the New Protocol,
where no EOT is agreed prospectively, the
Contractor could adopt a dual procedure -
prospectively or contemporaneously defining the
critical path, then again retrospectively.
The Contractor’s ability to exaggerate its final
EOT claim is limited by defining the critical path
retrospectively. This avoids the current situation
whereby the use of TIA instills undue confidence
in the Claimant – encouraging the Claimant to
resort to litigation or arbitration where, in reality,
there may be little chance of success.
The disadvantage (for the contractor at least) is
that he will potentially have to do more than one
analysis to claim an EOT and will have to expend
time and effort to fully understand why each
method is appropriate in each circumstance.
However, Contractor’s will produce more robust
claims with potentially improved results.
The New Protocol will likely be a game changer
for contractors and engineers and potentially
reduce the number of unsustainable claims.
Conclusions
It has been 13 years since the introduction of the
Old Protocol, since when the industry appears to
have woken up to the prospect of using a
“common sense” approach to delay claims. It has
sidelined the use of TIA long after the events
have taken place and brought a reality check to
potentially theoretical techniques commonly
favoured by Contractors. The main points are
summarised as follows:
• The New Protocol defines six methods,
including three new “Effect and Cause”
methods, and describes the handling of each.
• Prospectively, Engineers should award only the
minimum EOT that can be justified at the time.
• TIA is considered unsuitable for a retrospective
delay analysis which should be informed by the
way in which the Project, in fact, progressed.
• Practitioners should exercise “common sense”
and realise that the facts are of primary
importance.
Industry Impacts
• The New Protocol offers a more defined delay
analysis landscape that should influence the
way contracts will be written in the future.
• Lawyers will need to give direction when
advising clients who have based their delay
analysis after the event solely on prospective
methods.
• Judicial panels will benefit from the guidance
given on the new “Effect and Cause” methods
to direct planning experts or analyse EOT
claims.
• Improved, robust retrospective Contractor
claims will likely be a game changer and
reduce the number of unsustainable disputes.
• If the New Protocol gains the same traction as
the Old Protocol, it could be the catalyst to
change how EOTs are agreed in the industry.

Paul Thornton joined Peter Evans Partnership in May 2015 as an Associate Director, Head of Forensic
Delay and Programme Analysis. Paul has a Master’s degree in Civil and Environmental Engineering,
Imperial College London and thesis stage for a Masters in Construction Law and Dispute Resolution
from Kings College London. Paul has 15 years of experience in the construction industry, much of which
has been gained in the Middle East region since 2007.

We hope you found this paper informative. Any feedback please contact: paul.thornton@peterevans.ae.
A follow-up paper, will review the Effect and Cause methodologies from the New Protocol.

© Peter Evans FZ LLC Page 4

! www.peterevans.ae