“One Man’s Delay Is Another Man’s Disruption”

Legal Issues in Making Contractor Disruption Claims

Construction

November 3, 2020

Construction man

The relief available for disruption claims is different from delay claims. Delay occurs when an event adversely affects the anticipated period for completing the project. The contractor in a delay claim will therefore be seeking an extension of time (where the construction contract includes an EOT provision) and, where relevant, loss and expense.

In contrast, an event of disruption adversely affects productivity whilst not having an impact on the overall period for completing the project. As a result, a disruption claim is a claim for loss and expense only.

Legal Issues in Making Disruption Claims

Whilst the relief available for disruption differs from delay, it is often difficult to distinguish between an event that will cause, or has caused, delay and an event that has merely disrupted progress.

In the recent English case of McGee Group Ltd v Galliford Try Building Ltd,1 Mr. Justice Coulson described any attempt to distinguish between delay and disruption as “unsustainable”. He said as follows:

“Anyone who has ever put together, argued or been obliged to decide a claim for loss and expense under a building contract, knows that no sensible distinction can be drawn between delay and disruption. One man’s delay is another man’s disruption.

A sub-contractor’s failure to complete a particular part of his work may have an adverse effect on the main contractor, but whether the consequential claim is one for delay or disruption, or a mixture of the two, will depend on a raft of factors: whether or not the delay was on the critical path of the main contract programme, what other sub-contractors were affected and how, if others were also in default etc.

It is impossible to divide up such claims between delay, on the one hand, and disruption, on the other. The proof of that pudding is in the eating…”

Footnotes:

1: [2017] EWHC 87 (TCC)


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