Construction Law August/September 2022

Editor’s comment
Financial regulator on trail of Carillion
Editor Nick Barrett argues that words addressed to accountants by regulators looking at the Carillion collapse should also be taken on board by construction.

News
This month’s news roundup includes details of a landmark cladding case that will be significant for many involved in similar disputes, as well as a report that shows a decline in profit warnings among large construction companies – while smaller firms continue to struggle – and insights from the Technology & Construction Court’s latest annual report.

Legal terms explained
Lucinda Hill of Herbert Smith Freehills LLP explains what is meant by Defective Works.

Guest editor
Leadership, regulation and a film about Notre Dame
Guest editor Amanda Bucklow, a widely respected Independent Commercial Mediator, makes a plea for considering the benefits of using mediation. Without mediation’s confidentiality and without-prejudice nature, many disputes would never reach settlement, she argues.

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction is compiled by News Editor Steve Dale, who comments on the growing consensus behind the idea of mandatory whole life carbon assessments in the built environment.

Reports from the courts
In our latest update on the court decisions of most interest to construction Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP examine a case that underlines the importance of objectively clear and unambiguous Pay Less notices; and one that summarises the test that the court will consider when determining applications for freezing injunctions.

Analysis
Net Zero Strategy deemed unlawful
Government’s Net Zero Strategy has been ruled inadequate and unlawful by the High Court. News Editor Steve Dale explores the ruling and asks what implications there could be for the construction sector.

CL guides
CDM Regulations
In our latest construction guides series from DLA Piper, Rachel Chaplin explains how the Construction (Design and Management) Regulations 2015 work and the obligations placed on Dutyholders as defined by the Act.

Building safety
High Noon for new building safety sheriff?
Barrister Philip Bambagiotti of 3PB considers the recently assented Building Safety Act 2022. A more rigorous approach to building safety is signalled, but he doubts that the Act will do what is needed.

Suspension
Suspension of construction contracts
Thomas Bilton and Jane Hughes of Trowers & Hamlins LLP examine Employer’s contractual suspension rights under the most commonly used building contracts, namely the JCT Design and Build contract (2016 edition), the NEC4 engineering and construction contract and the FIDIC 2017 ‘Red Book’ contract.

Adjudication
Playing the adjudication game
Karen Gough, a barrister at 39 Essex Chambers London, examines a recent case that contributes to the growing body of decided cases supporting the integrity of the adjudication regime.

Technology
Technology in construction disputes – managing data and proving claims
The advantages of using new data gathering technologies are many, but as Shona Frame, Jane Fender-Allison and Duncan Turner of CMS point out in this analysis of the opportunities, a range of new issues are created.

Insurance
Building Safety Act may reduce insurance costs – in the long term
Insurance expert John D Wright of JD Risk Associates examines the insurance implications of new post-Grenfell safety laws. Higher prices and more onerous terms can be expected, he warns.

Alternative dispute resolution
Gender parity in expert appointments: an issue for us all
Our latest Alternative Dispute Resolution series article comes from Tracey Summerell of Dentons UK and Middle East who describes initiatives to increase gender parity in appointments of expert witnesses.

Read more

Planning reforms target accelerated infrastructure approvals

Deregulating reforms to the planning system which promise to speed up consent for major infrastructure projects have been outlined by the government in a mini-Budget delivered by the new Chancellor Kwasi Kwarteng.

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Project delays and insolvencies remain key risks for sector

Increasing insolvencies remain a significant risk to projects and supply chains in the construction sector and clients must stay aware of the need to share risks responsibly, warns the latest market view report from Mace.

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Industry failing to measure carbon emissions on projects

Three quarters of UK construction projects are making no measurement of operational carbon emissions across their lifecycle while more than half do not measure embodied carbon, a survey from RICS has highlighted.

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Standard proposed for construction product competence

Radical change is needed to ensure the competence of those supplying and using construction products following the Grenfell Tower disaster, according to a White Paper which proposes a new standard for assessing their proficiency.

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Major injunction granted to block HS2 site protests

High Speed 2 has secured an injunction from the High Court to block protesters from disrupting work to deliver the railway across the length of its route from London to Crewe via Birmingham. The court order will apply to a number of named defendants as well as to “persons unknown”.

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Probe into Gatwick station death handed to HSE

An investigation into the death of a slinger signaller on a project to redevelop Gatwick Airport train station – where Costain is the main contractor – has been handed over to the Health & Safety Executive by police.

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Contractor punished after worker takes fatal fall from roof

A roofing contractor based in the north west of England has been handed a suspended prison sentence after an employee fell from a roof ladder at a site in Burnley and died at the scene.

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Building structural safety concerns raised by engineering group

Concerns that increasing numbers of new buildings may not be structurally safe have been called to attention by a chartered engineer reporting to Cross-UK, who warns of failures to appoint sufficiently qualified engineers and a lack of appropriate design scrutiny.

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Call to avoid ‘race to the bottom’ as downturn strikes

Clients and contractors should learn lessons from the global financial crash of 2008-2012 to avoid ushering in another ‘race to the bottom’ of overly competitive bidding as a new economic downturn takes hold, according to Arcadis.

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Genoa bridge trial restarts following prior postponement

A trial in which 59 individuals are facing various charges in relation to the fatal collapse of the Morandi Bridge in Genoa in 2018 is recommencing this week after its first hearing was postponed in July.

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