Construction Law – June 2019

Editor’s comment
Private procurement failings exposed
Public sector procurement skills are regularly slated for being inadequate, but Editor Nick Barrett says Crossrail’s problems suggest that drafting in the private sector might not deliver better outcomes.

News
Featured news in this issue includes details of new tools designed to help prevent modern slavery on sites, a major settlement over the blacklisting of workers and the latest development in the Competition & Markets Authority’s crackdown on construction cartels.

Legal terms explained
Michael Sharp and Noe Minamikata of Herbert Smith Freehills LLP discuss suspension.

Guest editor
Insurance crisis means challenging times ahead for in-house counsel
Guest editor Bruce Hepburn, Chief Executive Officer of insurance consultants Mactavish, asks whether the collapse in the adequacy of insurance available to construction and engineering firms reflects more systemic problems. Is the insurance industry’s failure to embrace the Insurance Act the problem, and how can in-house lawyers compensate for that failure, he asks.

Contracts monitor
Late payments scourge remains
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, ends his long running series of articles on construction contracts with a final look at the JCT Design and Build Contract 2016 edition. The text of the section on the always tricky issue of payments is difficult to follow, despite simplifications.

Reports from the courts
Our regular round up of the cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, focussing on a decision that serves as a reminder that where new evidence becomes available or where some part of the claim has been left undecided in an earlier adjudication, it may be possible to adjudicate again in relation to the same issue; and another that provides some clarification on liquidated damages.

Legislation state of play table
Our regular round up of legislation affecting construction as it passes through the UK and EC legislative systems comes from Dentons UK and Middle East LLP whose Esther McDermott and Tracey Summerell provide a commentary on the conditions imposed by the EU in return for an extension to the UK’s exit date from the EU.

CL guides
The Construction Act
In the latest of our series of Guides to key Construction Law topics Jessica Tierney of DLA Piper explains the regime introduced by the Construction Act and how it works in practice.

Adjudication
How much later is ‘later’?
In this update of the law on ‘smash and grab’ adjudications Vijay Bange and Tanya Chadha of Trowers & Hamlins LLP report on a case that they say seems to have been decided on policy considerations rather than having any real legal or judicial basis. Smash and grab is still with us, they argue.

Fracking
Fracking case law and its relevance to construction
Barristers Chris Bryden and Georgia Whiting of the Chambers of Timothy Raggatt QC, 4 King’s Bench Walk, examine the implications for construction of recent case law surrounding ‘fracking’ to extract shale gas.

Collaboration
Collaborate or die?
Collaboration is increasingly recognised as a key area where construction falls woefully short. Well known Independent Commercial Mediator Amanda Bucklow examines some of the mental and behavioural blocks to effective collaboration.

Prevention principle
A lack of principle
Christopher Edwards of 3PB Barristers examines the implications of an appeal court ruling that said the ‘prevention principle’ is not in fact a principle of law, but an implied term. Following this case perhaps nothing has changed – or perhaps everything has.

Insurance
Fire damage – tenants beware
Insurance expert John D Wright of JD Risk Associates examines the cover available for fire damage. Landlords as well as tenants should be cautious, he warns, and some case law does not set precedent for all situations.

Alternative dispute resolution
The shorter trials scheme
In the latest of our alternative dispute resolution series, Gurbinder Grewal and Tracey Summerell of Dentons UK and Middle East LLP highlight when it is appropriate to use the Shorter Trials Scheme and its sister process, the Flexible Trials Scheme, which are now entrenched as formal court processes in the Civil Procedure Rules.

Task force to develop construction licencing scheme

Several construction industry bodies have formed a task force to lead the development of a mandatory licencing scheme for all UK construction companies.

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BAM Nuttall fined over botched lifting operation

BAM Nuttall has been fined over £800,000 after a worker suffered three fractured vertebrae when he was hit on the head by a large expanded polystyrene block.

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Building safety regulator plan set out

Government has outlined plans for a new building safety regulator to provide oversight of a reformed regulatory regime, which is being taken forward in response to the Grenfell Tower fire.

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Standard contract published for underground works

FIDIC and the International Tunnelling & Underground Space Association have launched a new form of standard contract for tunnelling and underground works, known as The Emerald Book.

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Law society issues warning over Planning (Scotland) Bill

Proposed legislation to improve the planning system in Scotland is currently unworkable and risks adding significant costs on local authorities, developers and communities, according to the Law Society of Scotland.

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Payment performance legislation urged in Scotland

Construction trade body SEC Group Scotland is calling for changes to legislation after an extensive survey revealed that the supply chain is still suffering from poor payment performance while the latest initiatives by the Scottish Government have not yet had a major impact.

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British standard updated for temporary works in construction

New guidance on all aspects of temporary works within the construction industry has been issued by the British Standards Institution (BSI) to help improve health and safety controls.

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Call for rail worker safety reforms after near miss

Reforms to Network Rail’s use of lookouts for track maintenance works have been urged following a near miss between a speeding train and a track worker at Peterborough last summer.

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In-house counsel face insurance crisis

An insurance crisis means challenging times ahead for in-house counsel, writes guest editor Bruce Hepburn of insurance consultants Mactavish in the latest edition of Construction Law, which lands on subscribers’ desks this week.

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Company and director fined for unsafe asbestos removal

Construction company Sherwood Homes and its director Peter Kiely have been ordered to pay a combined total of almost £200,000 after failing to ensure the safe removal of asbestos during demolition work.

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