Construction Law: December 2019

Editor’s comment
If not private finance, then what?
The consultation is still underway for a replacement for the UK’s discredited private financing of infrastructure model. Editor Nick Barrett says news from the health service might confirm that PFI is finished, but warns that it might have to reappear in a new form.

News
Our latest news roundup features new statistics showing a drop in prosecutions for health and safety offences, details of a dispute over the late completion of a dual carriageway upgrade in Cornwall and concern that the government’s new Construction Framework will not address late payment.

Legal terms explained
Michael Sharpof Herbert Smith Freehills LLP explains the key features of Engineering, Procurement and Construction (EPC) contracts.

Guest editor
Infrastructure isn’t just for Christmas – or elections
Guest editor Cecily Davis of Fieldfisher looks at the current upsurge in political promises to boost infrastructure investment. The construction industry may be up to the challenge of delivering the projects, but can the politicians deliver on their promises?

Legislation state of play table
Our regular update of the progress of legislation of interest to construction passing through the UK and EC legislative systems comes from Dentons UK and Middle East LLPTracey Summerell discusses the Grenfell Tower Inquiry phase 1 recommendations.

Reports from the courts
Our latest round up of the court cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP includes one that highlights the need for joint ventures to consider when and how pain/gain share related payments are made; and one concerning whether supply of materials is covered by the Construction Act’s adjudication regime.

Analysis
Algorithms tackling cartels
Competition authorities have their eyes firmly fixed on construction, which looks to them like an easy as well as an obvious target. Things look like heating up for the lawbreakers, with new technology making cartel and other anti-competitive behaviours easier to spot, as Editor Nick Barrett reports.

CL guides
NEC4 Suite of Contracts
The latest article in our Guides to Construction Law series comes from Naithan McBride of DLA Piper who examines the ‘upgraded’ NEC4 contracts suite. The stress is on increased flexibility, collaboration and ease of use, he explains.

Arbitration
IChemE’s Arbitration Rules: the new Pink Book fifth edition
Barrister Paul Buckingham, Chairman of the IChemE Disputes Resolution Panel, explains the changes to the Institution’s Arbitration Rules, contained in the fifth edition of The Pink Book.

Contracts
Blockchain boost for ‘smart’ contracts
Lampros Stougiannos of Dentons Canada LLP warns that the rapidly developing uptake of digital technologies across industries, including BIM in construction, allied to a more collaborative approach to project execution, will force changes to contracts. Throw blockchain into the mix, and ‘smart contracts’ are not far off.

Economic Loss
The perennial problem of pure economic loss
Not being able to recover economic loss is an issue constantly bedevilling construction. Barristers Chris Bryden and Georgia Whiting of the Chambers of Timothy Raggatt QC, 4 King’s Bench Walk, analyse why it is a particular problem for large multi-party projects.

Insurance
Cyber risks – are you secure?
With the risk from mischievous hackers and other cyber criminals growing worldwide, insurance expert John D Wright of JD Risk Associates explains the sort of cover companies should be contemplating.

Legislation 
Limited legal support hampers solar growth
Legal writer and former law lecturer Anastasia Barich-Chivikova analyses a recent court ruling that offers little encouragement to solar energy market companies seeking compensation for changes in government funded subsidy regimes. Is there a warning here for those relying on other subsidies?

Alternative dispute resolution
Engage emotional intelligence
In the first of two articles about preparing for mediation, Tracey Summerell of Dentons UK and Middle East LLP considers how settlement prospects can be improved by the early use of our emotional intelligence/quotient (EQ).

Danger of further cost increases on Carillion hospitals

Significant risks of further delays and added costs have been identified on two PFI hospital projects which liquidated contractor Carillion was building at the time of its collapse in January 2018.

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HSE to oversee new building safety regime

A new Building Safety Regulator will be established within the Health and Safety Executive, Housing Secretary Robert Jenrick has announced.

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Contracts manager jailed after roof fall death

A roofing contracts manager has been sentenced to two years in prison following an incident in which an employee fell through a fragile roof while working at a site in Rochdale and passed away.

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Labour peer introduces late payments legislation

A fresh private member’s bill which aims to tackle payment abuse in the construction sector has been introduced to the House of Lords by Labour Peer Lord Mendelsohn.

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Expert Witness register launched for structural specialists

The Institution of Structural Engineers has launched a new Expert Witness register containing details of its members who are qualified to give an opinion on specialist technical matters to a court.

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Poor contracting leads to rising costs on nuclear schemes

Failure by the Ministry of Defence to mitigate commercial and delivery risks early on in three critical infrastructure projects at nuclear regulated sites has led to programme delays and cost increases, the National Audit Office reports.

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Berkeley report critical of High Speed 2 procurement

Parliament has been misled on the costs of delivering High Speed 2 according to a report from Lord Tony Berkeley, who suggests that the project could save money by restructuring its contracts and restarting the tendering process.

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Sir Robert McAlpine fined over fall from height

Construction company Sir Robert McAlpine has been ordered to pay close to £300,000 after a worker fell 4.8m through an unprotected opening at a property in North Yorkshire.

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Glasgow NHS Board pursues legal action over hospital faults

NHS Greater Glasgow & Clyde is pursuing legal action against contractor Brookfield Multiplex over problems with the construction of its Queen Elizabeth University Hospital.

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Challenge to combustible cladding ban upheld by court

A High Court ruling has quashed part of the Government’s ban on combustible materials from being used on the walls of high rise buildings, following a challenge to the consultation process, it has been revealed.

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