A contractor seeking compensation for delay or disruption is generally subject to a duty to take reasonable steps to mitigate the impact of the relevant event. Core Principle 15 of the SCL Delay and Disruption Protocol explains the practical content of this duty as it applies in construction.
The duty to mitigate is well established in the law of damages, and applies in most legal systems including those of the Middle East. It requires the claimant to take reasonable steps to avoid or reduce the loss caused by the wrongful act of the other party. It does not require the claimant to take extraordinary measures, to incur disproportionate cost, or to act contrary to its commercial interests.
In the construction context, the duty operates at two levels. First, mitigation of delay: the contractor should take reasonable steps to avoid or reduce the impact of a delay event on the completion date — for example by re-sequencing non-affected works, deploying additional resources where reasonable, or co-operating constructively with the employer to overcome the delay event. Second, mitigation of loss: the contractor should take reasonable steps to avoid or reduce the cost consequences of the delay — for example by demobilising idle resources, redeploying labour to other works, or claiming under insurance where applicable.
The Protocol stresses that mitigation does not require the contractor to incur additional cost. Acceleration measures — such as overtime working, additional shifts or increased resources — are not mitigation in this sense; they are acceleration, and the contractor is generally entitled to recover the cost of acceleration where it is reasonably incurred in response to an employer-risk event.
In Middle Eastern arbitrations, the question of whether a contractor has properly mitigated is frequently raised by employers as a defence to delay and disruption claims. A delay expert witness will typically examine the contractor's actual response to delay events, the resources available, the contractual constraints on changes in method, and the reasonableness of the steps taken or not taken.
A well-documented response to delay events — including consideration of mitigation options, communications with the employer, and decisions taken — is the contractor's best defence to a mitigation challenge. Conversely, silence in the face of delay events, or failure to consider obvious mitigation steps, can significantly weaken the claim.