Nothing comes of nothing

Is your contract plagued by disruption? Are you losing money because of disruption? Are you in the middle of a dispute about disruption? Are the blokes on site unable to make the production speeds you priced the job at? Has the job switched from work “on the tape” to a daily rate just to keep the blokes from running off? Been there? Oh, I nearly forgot, have you tried to get a disruption claim paid in adjudication or arbitration or even litigation … and failed?

Now listen carefully, I will say this only once:

Go out and get £50 worth of book called Quantifying and Managing Disruption Claims by Hamish Lal. Then listen to my story about a fella called Tom Smith and listen to me tell you about one of my favourite tradesmen on site, Alan Norman. Between them, these three chaps know a heck of a lot about disruption.

In fact, when I read Hamish Lal’s book I got the impression that this construction industry lawyer had at some time or other reached his wits’ end over disruption claims. The disruptions waste masses of money of course. But then the quarrels about how much money the disruptions waste, themselves waste masses of money. And when it comes to adjudication, that, too, can easily waste masses of time and money (see Tracey Wood’s article below). Lal sat down, had a think and wrote this book about how to stop the waste.

Let me chip in my tuppenceworth as an adjudicator. I will be blunt: time and again I am asked to decide that the contractor has been disrupted, and time and again I am persuaded that he has. But then comes the quantification of the disruption value, and time and again the result is nil. Why nil? No evidence, that’s why.

Once upon a time, Scotsman Tom Smith was a clay miner at Birkhill in the West Country. He was paid on the tape. Actually, it was by the cart. His job was to use a hand pick to load 20 carts a day. Wait for it: each cart took one ton of clay. Twenty tons a day, hand shovelled. His pay slip in week 15 of 1942 was £3.9s.4½d for a six-day week. And if he was disrupted, he lost money – unless it wasn’t his fault. Tom made sure he knew what caused him to be disrupted in his picking and shovelling. By the way, I was in that clay mine a few days ago. Tom’s gone. I don’t blame him.

Nothing comes of nothing

Alan Norman is another worker, a tradesman, a man whom I call a putter-upperer on site. He has a fanatical approach to his six-packs: his daily target is to fix six packs of material in place on site. He, too, is paid on the tape. Lose a pack in a day and he loses money. His children go hungry, their school fees don’t get paid, the swimming pool in his villa in Tuscany doesn’t get cleaned. Know what I mean? Alan is the best bloke I know in the disruption business. If he gets held up on site, he writes down in a shorthand notebook there and then who did what to cause him to lose production. He can tell you what disrupted him on the 5 March 1974 when he was putter-uppering at the Barclays Bank refurbishment job in Castle Street, Luton. See?

Alan is the best bloke I know in the disruption business. If he gets held up on site, he writes it down in a shorthand notebook there and then

It’s called evidence.

Back to Hamish Lal. What does he say in his book? Well blow me down, he decides that the only effective way of buying and selling disruption claims is by using a “daily ganger return form”. He says: “By concentrating site labour productivity on the incidence of disruption, the resultant labour productivity measurements can be used to objectively and systematically quantify the effects of disruption on site productivity.”

Well, well. That’s exactly what Tom Smith wrote down in 1942, while being interrupted between loading the 10th and 11th ton of clay. Alan Norman didn’t say that in his spiral-bound notebook. What he did say was: “I was buggered about today because the rain poured in through a hole in the roof while waiting for the architect to finish his design … loss of productivity: six-packs.”

Evidence, old boy, evidence.

And, if I am the adjudicator, that’s a damn good start. By the way, there is a vacancy in the clay mine: 20 tonnes hand-loaded, muck-away, good rates, apply within. Not for me, though – I am earning good money cleaning Alan Norman’s swimming pool in Tuscany.

Tony Bingham is a barrister and arbitrator