Construction Law: December 2024

Editor’s comment
House of Lords hears construction slammed for Grenfell response
Editor Nick Barrett says companies and organisations culpable for the Grenfell tragedy have a narrow window in which to start showing proper remorse, which they have signally failed to do so far, as was spelled out in a House of Lords debate.

News
Our regular news round up looks at a report calling for measures to streamline the judicial review process and reduce the amount of time it takes for legal challenges against projects to move through the courts; High Court rejection of a legal challenge to the government’s climate adaptation plans; and a legal challenge over the decision to give consent to the UK’s largest untapped oil field heard at the Scottish Court of Session.

Legal terms explained
Maddy Van Every of Herbert Smith Freehills LLP explains the Uniform Rules for Demand Guarantees, a codified set of contractual rules published by the International Chamber of Commerce which govern demand guarantees and counter-guarantees.

Guest editor
Does the budget promise a brighter 2025 for the construction sector?
Guest Editors Caroline Maciver and Laura West of CMS see huge opportunities for the construction industry across the UK in current investment plans.

Legislation state of play table
Our regular update on the progress of regulations and legislation affecting construction and procurement compiled by Alignment Media.

Reports from the courts
Our regular round up of the court cases of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who examine a case where a judge said the manner of an attack on an adjudicator was “wholly inappropriate”; and a judgment emphasising that Part 8 proceedings are a means of obtaining declaratory relief.

Book reviews
Lauren Fullerton, Assistant Professor at Northumbria University and Door Tenant at Trinity Chambers, reviews two recently published books, one on party walls and the other a guide to construction contracts in Northern Ireland, said to be the first comprehensive resource specifically tailored to the legal landscape of Northern Ireland’s construction industry.

CL guides
Good faith
Our latest Construction Law Guide series article comes from Clare Rushton and William Hawtin of DLA Piper who explain how good faith works in English law.

Jurisdiction
Making the right choice of governing law for offshore wind projects
Parties to offshore wind projects can select whatever governing law they choose, as Marc Loehner, Country Managing Director at Turner & Townsend JUMBO in Germany, explains. Making the right choice in crucial, especially when it comes to managing disputes and other issues that may arise.

Legislation
Grenfell Inquiry Report – where does it leave building safety liability?
Chris Leadbetter of Clyde & Co examines the impact of the Building Safety Act, which has placed new burdens on construction and its insurers. Consensus is growing that Government has to step up and acknowledge its share of liability and responsibility for the failings that led to the Grenfell tragedy, he says.

Contracts
All contracts that glitter are not gold
Elle Cheung and Jane Hughes of Trowers & Hamlins LLP examine the JCT Design and Build Contract 2024, looking particularly at an amendment which promotes the previous Supplemental Provision 5 to Article 3, thereby making it mandatory. Is it a ‘fluffy’ obligation, lacking teeth?

Innovation
Innovation in construction – when am I liable and for how much?
Hsu Mei O’Neill of Watson Farley & Williams LLP discusses the impact of innovative technology and materials on construction as the industry strives to improve efficiency and its sustainability performance. New technology brings new risks, she warns.

Insurance
Contractors’ and Consultants’ Environmental Liability
Insurance expert John D Wright examines environmental liability cover available for contractors and consultants. Pollution incidents are not covered by standard policies but environmental impairment cover is increasingly in demand.

Alternative dispute resolution
Challenging times
Our regular alternative dispute resolution article comes from Kirsti Olson and Alex Wendelken-Dickson of Dentons UK and Middle East LLP who look at court attitudes to poorly founded challenges to adjudication decisions.

Company fined after worker loses lower leg

A Sheffield precast section manufacturer has been fined £60,000 after a steel pallet landed on an employee, leaving him permanently disabled.

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State of the industry blamed for tendering failure

Leicester City Council has decided to retender for a major railway station upgrade after receiving only a single bid, blaming ‘the state of the industry’ for the lack of interest.

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Spending watchdog slams roads as ‘national embarrassment’

The Public Accounts Committee (PAC) says the Department for Transport (DfT) is not taking its responsibilities and use of public money on local roads sufficiently seriously.

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Lawyers back calls for reform of workplace injury legislation

Personal injury lawyers in Scotland are backing a bid to reverse legislation which has been said to have increased complexity and uncertainty in workplace injury claims.

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Final investment decision on Sizewell C faces delay

France’s state auditor the Cour des competes says in a report that state owned French nuclear company EDF should delay making a final investment decision in the UK’s Sizewell C nuclear reactor project until it has reduced its exposure to Hinkley Point C.

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Payment practices under the spotlight as part of a drive to tackle industry suicides

Payment practices, long working hours and the use of zero hours contracts will be examined as part of a project launched by Tier 1 contractors to identify root causes of poor mental health in construction.

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HS2 costs might not be firm until 2026, MP’s are told

Leading Department for Transport civil servant Dame Bernadette Kelly has told MP’s on the Public Accounts Committee (PAC) that the latest cost estimates for competing the HS2 project from the company were unreliable and agreement on a firm estimate was not expected until later in 2025.

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AI pilot scheme succeeding in spotting bid rigging

The Competition and Markets Authority (CMA) reports success with a pilot scheme using Artificial Intelligence to spot bid rigging by contractors and warns of significant risks to public procurement from the illegal activities.

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Rail industry calls for strategic re-set

The Railway Industry Association (RIA) has written an open letter to Transport Secretary Heidi Alexander MP calling for a strategic re-set for rail in the forthcoming government Strategic Spending Review.

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Clients failing to engage with building safety regime, says survey

Construction clients are totally failing to engage with the new building safety regime while pressure to deliver projects cheaper and faster is increasing, according to research carried out by the Building Engineering Services Association (BESA). The association is calling for a public awareness publicity campaign to boost client engagement.

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