Delay and Disruption in Construction Contracts by Keith Pickavance
(4th ed, Sweet & Maxwell, 2010), 1274 pages (including index and tables), RRP: £320)
Reviewed by John Dorter
What a wonderful, well-rounded and in-depth worth this very authoritative text has matured into.
The very learned author has given the profession a splendid encyclopaedia on not just his vast expertise in respect of delay and disruption but also in respect of the several relevant risk categories. For example, in respect of the legal risk, he gives a reminder of the potential danger in amending standard forms inappropriately; as well as on the other side of the ledger, in failing to do so when addition of amendment is not only necessary but, indeed, invited.
In respect of the vast field of design risk, he deals with the dangers of accelerating design schedules and the failure to observe any relevant duty to warn. Similarly, the author canvasses the many dangers and risks relating to different types of project procurement beyond basic design and construct.
The treatment of time and cost is far from just theoretical; quite to the contrary, there is very helpful advice on the necessity for appropriate and proper drafting, well illustrated by the quotation from Pascal, viz:
Words differently arranged have a different meaning, and meanings differently arranged have different effects.
Australasia will benefit from paying close attention to what the learned author says about New South Wales’ C21 and its perhaps unfortunate novel and innovative approach to replacing the perceived difficulty and uncertainty of indentifying the critical path in an incompetent schedule, together with obfuscation of the root cause.
Australasian practitioners similarly will recognise the concerns about words such as “beyond the contractor’s control” – well illustrated by the unfortunate Scott Lithgow Ltd v Secretary of State for Defence (1989) 45 BLR 6, together with the famous and learned criticism by the late Professor Ian Duncan Wallace QC.
The treatment of authorities is both well up to date and extensive, including such significant ones as the Royal Brampton Hospital and Skanska cases.
Construction lawyers and others will be greatly helped in the fundamental issues of cause and effect. Naturally, the learned author covers the field, including Byrne J’s famous corrections from inferring causation to taking a more scientific approach.
Similar significance in more recent times of proportionality is recognised and well covered.
The author’s great expertise in respect of float is not only well known but exemplified in almost every aspect, including very helpful consideration of the SCL Delay and Disruption Protocol (including how float is to be allocated).
The ripple effect is dealt with, including the healthy reminder that “ripple effect works both ways”. The fine analysis of the many aspects of delay includes the reminder of the distinction between concurrency and parallelism.
Global claims and their related ones are also well analysed, not just in the United Kingdom but in Byrne J’s classic distinction, viz:
Since there is only one event which is said to have brought about extra work, it is not a true global claim. It is more correctly described as a total time/cost claim.
Technically, the publication is very considerably enhanced. For example, despite the unfortunate modern trend to a brief and mechanical index, this one is detailed and very helpful.
The citation for this review is: (2012) 28 BCL 318.