Construction Law – August/September 2019

Editor’s comment
Crossrail fiasco can expect further scrutiny
Editor Nick Barrett expects the new minister for procurement to take a close look at Crossrail ahead of any boost to public sector investment following a damning report from MPs.

News
Featured news this month includes an accusation by MPs that building and fire safety reforms are moving too slowly post-Grenfell; details of more suspensions from the Prompt Payment Code; and the results of new research into insurance disputes.

Legal terms explained
Michael Sharp and Elissa Patel of Herbert Smith Freehills LLP explain what is meant by true value adjudications.

Guest editor
What’s next for UK construction?
Construction is ripe for disruption and massive changes are coming says guest editor Shona Frame of CMS. Can the industry adapt to address the perfect storm of challenges it faces?

Legislation state of play table
Our regular round up of new and proposed legislation that will affect the construction industry comes from Dentons UK and Middle East LLP. Mark Macaulay and Tracey Summerell provide commentary on government’s progress to create a more responsible payment culture.

Reports from the courts
Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP present our regular round up of court cases of most interest to construction. One decision confirms that the courts will enforce time bars to adjudication under NEC contracts in circumstances where the Construction Act 1996 does not apply; another emphasises the importance of clarity as to what is being agreed in relation to selection of adjudicators.

Analysis
Environment Agency procurement breaks with the past
The Environment Agency has embarked on what is hoped to be a more collaborative delivery mechanism for its flood and coastal erosion risk management spending. Editor Nick Barrett reports that questions are being asked about whether the selection process for frameworks is throwing healthy babies out with the bathwater.

CL guides
CL guide – Limitation
Jenny Harrison of DLA Piper presents the latest in our CL Guides series, explaining the principles of, and recent developments in, limitation.

Markets
The challenging evolution of UK energy from waste
Cecily Davis and Ryan Musikant of Fieldfisher examine some of the key challenges facing the UK’s energy from waste sector. Among many successes there are also failed projects and financially damaged contractors, they warn, but things are getting better.

Technology
Contracts playing catch up in digital revolution
Construction has lagged in the digital revolution and the industry’s contracts still generally do not reflect Building Information Modelling, which sits at the revolution’s heart. Andrew Croft of Beale & Co Solicitors LLP and
May Winfield of Buro Happold examine efforts being made to help the industry catch up.

Contracts
Liquidated damages and unfinished works
Shaun Tame, Counsel at Dentons UK and Middle East LLP, examines how liquidated damages provisions operate in respect of unfinished work following an appeal court ruling earlier this year.

Modern methods of construction
The off-site manufacture revolution
Great hopes are being pinned on off-site manufacturing to deliver improved performance by the construction industry. Shona McCusker of CMS recognises the potential, but sees organisational hurdles that must be overcome.

Insurance
The risks of change
Insurance expert John D Wright of JD Risk Associates finds that insurers are encouraging customer loyalty as they seek to maintain market share. There may be good reasons to change insurers, but there may also be advantages to staying put.

Alternative dispute resolution
Affordable adjudication?
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East LLP examines new initiatives to cap costs for lower value adjudications.

Judge overturns adjudication ban in hotel dispute

Scottish construction firm Douglas & Stewart has successfully challenged a court ruling preventing it from taking a contractual dispute with a hotel owner to adjudication.

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News in Brief: 23 August 2019

Government has quietly dropped a requirement for its contractors to pay 95% of all invoices within 60 days, or risk being prevented from winning public sector projects.

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Report identifies construction insurance challenges

New technology such as drones, satellite imagery and laser scanning will increasingly be used to help to assess risks and insurance claims on construction projects according to a new report from insurer Allianz.

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Consultant publishes Project 13 guidance

Practical guidelines to help infrastructure owners incentivise performance outcomes, innovation and collaboration on projects are highlighted in a new paper published by engineering consultant Arup.

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Proposals launched to boost competence post-Grenfell

Raising competence in the construction industry is the aim of new measures proposed by a Competence Steering Group, which was set up following the Hackitt Review of building safety in response to the Grenfell Tower Fire.

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High Speed 2 to undergo independent review

Viability of the High Speed 2 project is to be reconsidered after government announced an independent review of the scheme, which will deliver its final report this autumn.

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Silvertown Tunnel procurement stalls after legal challenge

Transport for London has been forced to stall the procurement process for its £1Bn Silvertown Tunnel scheme in East London after the reserve bidder STC lodged a legal challenge.

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Three more directors disqualified for office fit out cartel

The Competition & Markets Authority has secured the disqualification of three more office fit out company directors after five firms were fined for illegal cartel behaviour earlier this year.

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Sector set for disruptive changes

Construction is an industry ripe for disruption and the pace of change is only likely to accelerate, writes guest editor Shona Frame of CMS in the latest edition of Construction Law, which arrives with subscribers this week.

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