Contents

Editor’s comment
Same old, same old for the post Cunliffe construction sector?   
A step change in how water infrastructure is managed and delivered is promised by the Cunliffe report. Editor Nick Barrett asks if it will result in the changes the construction sector needs for the second biggest infrastructure programme in the UK.

News    
Our regular news round up looks at a final investment decision made for Sizewell C; new Treasury business case guidance for major projects; and new subsidy contracts for wind and solar projects that promise to reduce risk.

Legal terms explained   
Hao Zhou of Herbert Smith Freehills Kramer LLP explains Price Adjustment Clauses.

Guest editor
Battle of the forms still rages
Guest Editors Ben Jolley and Gayatri Gogoi of Herbert Smith Freehills Kramer LLP take a close look at a TCC decision that at first glance seems to displace the ‘last shot’ principle in contract formation. On examination, they argue, parties still have to be aware that contracts can be formed before formal documents are signed.

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  decision  that shows the TCC’s commercial approach to interpreting payment applications rather than entertaining overly complicated interpretations of the Scheme; and one showing that the courts will look to uphold good faith obligations; parties will need to show that a breach is causative of an alleged loss.

Analysis
Remoteness of damages in construction disputes  
Barry Hembling, Caroline Rossmann and William Stewart of Watson, Farley & Williams LLP examine a long running dispute that has already been before the Supreme Court. This latest TCC judgment provides useful guidance about the law on remoteness of damages and how these principles are applied in construction law claims. 

CL guides
Construction Law Guide to: Adjudication
Our latest Construction Law Guide series article comes from Jenny Harrison of DLA Piper LLP who examines Adjudication.   

Artificial Intelligence
AI in Construction Dispute Resolution   
Chiara Pieri and Keith Robertson of CMS Cameron McKenna Nabarro Olswang LLP analyse the opportunities, risks, and guidance of using Artificial Intelligence (“AI”) when resolving disputes in construction. Despite the valuable contribution of AI, human oversight is still needed, they argue.

Arbitration
Reducing the carbon footprint of international arbitrations    
Fatma Guney, Partner at Hamish Lal Partners, London, seeks to point to the elephant in the room and explore the concept of ‘Greener Arbitration’. Has arbitration strayed too far off a suitably green path, she asks.

Building safety
Reforming the Building Safety Regulator: A new dawn?  
Alex Jones of Walker Morris examines why the House of Lords is undertaking a formal inquiry into the effectiveness of the Building Safety Regulator regime, which is widely agreed to need significant overhauled. Hold ups to high rise housing projects in particular need to be overcome. 

Defective premises
‘Dwelling’ further on the Defective Premises Act 1972   
Nicholas Zeolla of Atkin Chambers analyses what is meant by a ‘dwelling’ under the Defective Premises Act. Premises that are predominantly commercial or industrial are not dwellings, he suggests.

Insurance
The Design Liability Minefield   
Insurance expert John D Wright of JD Risk Associates explains why design liability cover is such a minefield for insurers. The problems are mainly of their own making however, due to poor policy drafting, he argues.

Alternative dispute resolution
Easing the procedural challenge of resolving safety disputes  
Our latest ADR series article comes from Tracey Summerell and Akin Akinbode of Dentons UK and Middle East LLP who report that court procedure for Building Safety Act related claims is creating quandaries for parties and judges.

Editor’s comment
End promised to northern neglect
The north has for long complained that it is largely ignored when it comes to government funding and infrastructure investment. Could those days be over thanks to newly announced reforms, asks Editor Nick Barrett.

News 
Our regular news round up reports on the Stewart review of major project delivery; consultation opening on procurement reforms; and a competition regulator inquiry into the roads and railways construction sector.

Legal terms explained
Mukuma Kawesha of Herbert Smith Freehills Kramer LLP explains how emergency arbitration relates to bond calls.

Guest editor
New NEC acquisition to improve project delivery?
Guest Editor Professor David Mosey, King’s College London Centre of Construction Law, welcomes an unprecedented collaboration between competing publishers of standard forms – fittingly for contracts designed to promote collaboration.

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
In our regular look at the court decisions of most interest to construction, Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP examine a case that reinforces the fact that losses claimed must be adequately pleaded and have legal merit; and one that highlights the uncertainty surrounding determining building height under the High Risk Building classification.

Analysis
Government promises more joined up approach to infrastructure investment
A raft of recent initiatives look like they represent a serious attempt to confront challenges to adequate and efficient infrastructure investment and delivery that have bedevilled the UK for many years, Nick Barrett reports.

CL guides
Construction Law Guide to: Price and Payment
The latest in our CL Guides series comes from Clare Rushton of DLA Piper LLP who explains how contracts deal with the the essential matters of price and payment.

Building safety
Supreme Court clarifies building safety liability issues
Stephanie Geesink, Counsel, and Dom Turner-Harriss of Watson Farley & Williams LLP analyse the landmark ruling from the Supreme Court that clarifies significant issues regarding liability for building safety defects. The decision highlights the potential liability that can arise many years after project completion.

“From Shed to Shard”: Why the BSA applies more broadly than you think
“From Shed to Shard” – that was the message delivered by the Building Safety Regulator (BSR) at the BSR Conference in March 2023, to emphasise the wide reach of the Building Safety Act. Lauren Bennett, Senior Associate at Gateley Legal looks at what that means in practice – whether you are working on the Shard or a ‘shed’.

Payments
The Construction Act payment regime: what about the VAT?
Matthew Thorne and Caroline Ziebart of 4 Pump Court examine a court decision with important implications for the industry’s payment regime. They argue that it creates a situation not required by the Construction Act and that it should be reversed.

Projects
Steering complex hospital builds to completion
Andrew Drennan of Alvarez & Marsal Disputes’ London office and Haris Katostaras of Alvarez & Marsal Disputes and Investigations in Athens, share their experiences of what causes such a high incidence of delays and disputes on hospital projects. Key strategies to mitigate the problems are suggested.

Insurance
Pros and Cons in Employer’s Liability Insurance
Insurance expert John D Wright of JD Risk Associates reviews the development of employer’s liability insurance over the past century. Despite efforts to minimise the dangers of injuries at work, the incidence of claims continues to rise, especially in construction.

Alternative dispute resolution
Approaches to choosing a dispute resolution forum 
In our latest ADR series article Tracey Summerell and George Harris-Rowe of Dentons UK and Middle East LLP report from a recent disputes conference in London.

Editor’s comment
Anti-cartel enforcers warn of focus on public procurement using AI tools 
Editor Nick Barrett reports that the Competition and Markets Authority enforcement head has warned that it is using AI tools to spot evidence of collusive behaviour.

News 
Our news round up of major events affecting construction reports on government threats to seize builder’s land banks if they don’t build-out fast enough; a proposal to licence builders; and a new model proposed for privately funded infrastructure.

Legal terms explained
Himani Patel of Herbert Smith Freehills LLP explains Transferred Loss.

Guest editor
Contracts need more careful preparation to avoid conflicting provisions 
Guest Editor Dom Turner-Harriss of Watson Farley & Williams LLP laments the inadequate contract preparation that is often found to lie at the heart of construction disputes. A recent case highlights what can go wrong, and points towards ways to avoid problems from conflicting contract provisions.

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 latest round up of the court decisions of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who examine a case that warns parties to monitor digital communications carefully and ensure that contractual negotiations are ‘subject to contract’ so that the signed contractual documents represent the agreed contractual terms; and a judgment that demonstrates the difficulties that parties face in using jurisdictional challenges to resist enforcement of adjudicator decisions.

Analysis
Infrastructure looks like a main beneficiary from change in government investment attitude
Hopes are high that a combination of pension fund reforms and revision to the Treasury’s Green Book could help unleash a new wave of infrastructure investment to be announced in the Spending Review and the Ten-Year Infrastructure Strategy, reports Nick Barrett.

CL guides
Construction Law Guide to: Time in Construction Contacts
The latest in our CL Guides series comes from Rachel Chaplin of DLA Piper LLP who explains some of the key time-related provisions relating to construction works.

Supreme Court
Voluntary Loss and Negligence: URS v BDW in the Supreme Court
Barrister Chris Bryden of 4 King’s Bench Walk looks at the landmark Supreme Court ruling that confirms the general principle that the wrongdoer should pay, regardless of whether money has been paid, or remedial works carried out in kind, without a claim having been intimated. There is no “bright line” rule of law preventing recovery of losses where claims could not be brought due to a time bar.

Arbitration
Modernising and streamlining English-seated arbitration
James Barratt, Bradley Lindsay and Iona Gilby of Vinson & Elkins examine several of the principal changes being introduced by the Arbitration Act 2025 which received Royal Assent in February. Enacting Regulations are likely be made soon, so parties should familiarise themselves with the changes, they advise.

Contracts
Has Design & Build outlived its usefulness in a post-Grenfell world?
Design & Build received implicit criticism in the Grenfell Inquiry report and the number of disputes involving them is on the rise. Barry Hembling, Dan Haley and Sam Gunnewicht of Watson, Farley & Williams LLP argue that this popular procurement route might no longer be fit for purpose.

Warranties
Does the Building Safety Act 2022 remove the value of building warranties?
Pauline Lam, Mark Fletcher and Aaron Walder of Russell-Cooke LLP ask whether the Building Safety Act is in need of reform following a First-tier Tribunal decision that could give insurers opportunities to avoid liability for remediation works under new build warranties.

Insurance
The Insurance Market – Meeting Today’s Challenges
Insurance expert John D Wright of JD Risk Associates predicts major challenges ahead for the stability business needs from the insurance market. Technological change, cyber crime and climate change are among the risks that need to be managed more rigorously than ever.

Alternative dispute resolution
No time for complacency in tech adoption
The latest in our alternative dispute resolution series comes from Tracey Summerell of Dentons UK and Middle East LLP who warns against complacency in face of the increasing use of new technologies like AI. The same standard of professionalism has to be applied to their implementation as in lawyer’s expert fields, she says.

Editor’s comment
Government slated for failures to advance post Grenfell remediation plans 
Editor Nick Barrett looks at the Pubic Accounts Committee’s report on the government’s dilatory progress on post Grenfell Tower tragedy building safety. Complacency and not taking issues seriously enough are among the accusations levied by MPs.

News
Our regular news round up includes publication of the Planning and Infrastructure Bill; housebuilders demanding that product manufacturers make a bigger contribution to the Building Safety Levy; and Scottish government support for the fast developing offshore wind market.

Legal terms explained
Tse Wei Lim and Yun Wen Soh of Herbert Smith Freehills LLP explain what decennial liability means.

Guest editor
It’s tough to make predictions, especially about the future – emerging risks in construction
Guest Editor Jane Hughes of Trowers & Hamlins LLP looks back at some predictions she made in Construction Law 20 years ago, and makes some new ones. One area that she made a prediction about tragically proved to be prescient, although not in quite the way expected.

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 look at a decision underlining the importance of clear and unambiguous drafting of variation clauses; and one that highlights the difficulties that insurers will face where their policyholders become insolvent.

CL guides
Construction Law Guide to: NEC4 (Part 2)
This second article on the NEC4 Engineering and Construction Contract (“ECC”), from Joanne Bennett of DLA Piper UK LLP, focusses on key aspects of core clauses 6 to 9, together with the dispute resolution options, secondary option clauses and Contract Data.

Planning
New kid or old hand – planning for data centres in the UK
The UK Government has committed to expanding the UK’s computer capacity by at least 20 times by 2030 as part of the AI Opportunities Action Plan. Sarah Fitzpatrick of Norton Rose Fulbright explains changes being made to the planning regime that will support the necessary growth in data centres.

Sustainability
Incorporating green drafting into construction contracts
Elle Cheung and Jane Hughes of Trowers & Hamlins LLP examine some sources of green drafting that provide provisions that can be incorporated into contracts. A fresh approach to drafting and risk allocation will be needed, they argue.

Building Safety Act
Information orders and liability: further developments
Chris Bryden and William Innes of 4 King’s Bench Walk analyse a case providing guidance on the conditions to be met before an Information Order will be made under the Building Safety Act. Only claims against bodies subject to a ‘relevant liability’ will succeed, the TCC has ruled.

Key building safety cases in 2025
In this review of recent key cases Richard Flenley and Mike O’Connor of Speechlys look at the impact of the Building Safety Act 2022, the biggest upheaval in construction regulation since the introduction of statutory adjudication in 1998.

Insurance
Good faith in insurance contracts
Insurance expert John D Wright explains how the obligation to act in good faith works in insurance law. Acting in good faith is a relatively recent duty in construction contracts, but it has been fundamental to insurance contracts for over 300 years.

Alternative dispute resolution
Lest we forget the value of our role in upholding the rule of law
Our latest alternative dispute resolution series article comes from Tracey Summerell of Dentons UK and Middle East LLP who looks at some recent events that show our much admired legal system at work.

Editor’s comment
New Act no cure for procurement malaise
Editor Nick Barrett asks whether the long awaited Procurement Act which came into force in February is likely to result in the improvement that the UK’s public sector procurement needs.

News
Our regular news round up looks at a report predicting a rise in cladding related professional indemnity policy claims; a rise in PFI handback condition disputes; and major Heathrow Airport investment plans.

Legal terms explained
Nick Oury and Maddy Van Every of Herbert Smith Freehills LLP explain IBA’s new Site Visit Model Protocol

Guest editor
Nerves of steel with millions at stake
For steel importers facing retrospective duty claims in excess of £25 million due to purported, post-Brexit administrative errors, the battle against HMRC is just beginning. Thea Maertens, a legal director at Gateley Legal, explores other legal routes that could help to mitigate big bills from HMRC.

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 decisions of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP. The first case they look at represents the first time that the High Court has found a “relevant liability” regarding an application for a Building Liability Order; and the second highlights that leaseholders should not bear the financial burden of fire safety remedial work, and that developers and their associated companies are the key targets for the costs of remediating fire safety defects.

Analysis
Generative Artificial Intelligence to transform construction procurement
Construction’s long and complex supply chains increasingly come under pressure, partly due to geopolitical events beyond the industry’s control, but partly also for reasons that it can often do something about. Kelly Boorman of RSM UK examines how construction can use technology and data analysis to mitigate at least some of the resulting risks around contract performance and safety.

CL guides
Construction Law Guide to: NEC4 (Part 1)
Our latest Construction Law Guides series article comes from Corinne McCarthy of DLA Piper UK LLP who, in the first part of a two-part article, looks at the NEC Engineering and Construction Contract, of which there are six forms.

Building safety
Understanding the Building Safety Act: what real estate legislation can tell us
Barry Hembling and Dev Desai of Watson Farley & Williams LLP examine some measures introduced by the Building Safety Act 2022 that they say purposely introduce an interplay between construction law and property law. Resulting uncertainty leaves room for divergence in how courts interpret statutory language under the traditionally different legal regimes, they warn.

Mediation
Compulsory mediation before trial: cracking even the hardest nuts
Jon Shaw of 3PB asks whether making the previously voluntary process of mediation compulsory will lead to the resolution of more disputes before trial. He examines a case thought to be the first time the High Court has made such a compulsory mediation order.

Planning
Development consent process to be more efficient and faster
Ben Garbett of Keystone Law says ambitious government plans to promote investment are welcome but face some deeply embedded structural problems in the planning system that have to be solved urgently. Sweeping reforms expected in the Infrastructure & Planning Bill due in March are keenly awaited.

Contracts
Surviving termination: the enduring rights and obligations in construction contracts.
Joseph Wittenberg of Turner & Townsend Contract Services Ltd looks at uncertainty around what rights and obligations survive contract termination. The courts will assume that a party will not freely give away its common law rights, so careful clause wording could be important, he warns.

Insurance
Insuring the catastrophe risks
Insurance expert John D Wright of JD Risk Associates looks at the insurance cover available for losses incurred during catastrophes, which are on the rise due to climate change. Some risks are already uninsurable, he warns.

Alternative dispute resolution
Could ADR help shift to collaborative contracting?
Practical steps for meeting the JCT’s collaboration requirement were discussed in our June 2024 column. In our latest alternative dispute resolution (ADR) series article, Tracey Summerell considers whether the availability of a mediation-like process for key parties pre-project commencement could fast-track the establishment of trust and strong relationships that underpin collaboration.