This will require a change in mindset across the industry. Stephen Blakey, Commercial Projects Director with Network Rail, one of the UK’s largest construction clients, believes this must be driven from the top down.
“So much of this revolves around culture. We have actively pursued a culture that maintains and sustains the viability of our supply chain. We insulated suppliers against performance indicators that became undeliverable on account of the pandemic and have taken a benign position on extensions of time. We opted not to pass the risk on to our supply chain.”
This has created what Blakey terms a “stable environment”, in which disputes have been kept to a minimum through an otherwise tumultuous year.
…and contractual clauses relating to disputes and delays should reflect the “new normal”
“Contracts weren’t previously drafted with pandemics in mind,” notes Helen Stuart, Senior Associate, Trowers & Hamlins. “Now we’re all aware of the risk, it’s sensible to amend standard form and bespoke contracts to cater for it. To touch on Stephen’s point: what does this new risk factor mean commercially, in terms of both time and money? In the UK, I’ve worked with the Construction Leadership Council on amendments to standard form clauses that should help the industry. Dispute escalation provisions in contracts can also be very useful.”
Preferred routes to conflict resolution seem to be changing; the past year may have helped focus minds on the need for collaboration
HKA’s CRUX Insights report shows in stark terms the extent to which the industry is still hamstrung by fractious and counterproductive practices. However, there are signs that the pattern of disputes is shifting.
Helen Stuart believes that the precedents established by a growing body of case law will allow parties to predict the likely outcome of pursuing litigation in COVID-19 related disputes. Armed with this knowledge, they may opt for different routes to resolution.
Dr Alex Opoku, Associate Professor in Project Management & Quantity Surveying at UCL Bartlett School of Construction and Project Management, agrees. “We have seen a move away from the more adversarial resolution options. Litigation is costly and time consuming. Some parties still prefer the certainty that it provides because the outcomes are enforceable, but in general we are seeing a shift towards mediation and negotiation options,” says Dr Opoku.