Contents

Editor’s comment
Biodiversity uncertainty highlighted in NAO report
Starving local authorities of funds has hollowed out engineering and planning departments and the impact is undermining government’s ability to pursue its own policies, Editor Nick Barrett says.

News 
Our regular news round up focusses on a disputes survey that suggests artificial intelligence will have an impact on contracts sooner than many think; a Labour Party plan that involves scrapping the IPA and the NIC; and a landmark legal victory for the government that forces a freeholder to fix serious building safety issues in a tower block.

Legal terms explained
Anant Rangan of Herbert Smith Freehills LLP explains what is meant by the term serial adjudication.

Guest editor
Insolvency in construction: the ‘bounce back’?
Guest Editor Daniel Warren of DLA Piper UK LLP questions whether recent improvements in the economy are reflected in construction’s fortunes. If the rate of insolvencies in the industry is anything to go by, the answer is no, he says.

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 judgment that serves as a reminder that the relevant provision must form part of a party’s standard written terms for the Unfair Contract Terms Act to apply; and one highlighting that parties should ensure they understand the wording and effect of their contractual provisions before contracting with another party.

Analysis
Avoiding Investor Pitfalls in Complex Construction Financing Arrangements
Construction constantly becomes more complex, in engineering and organisation and legal aspects. Lawrence Winsor of Vinson & Elkins’ New York office says project financing is increasing in complexity as well. Some simple tactics can help avoid pitfalls and disputes.

CL guides
Insuring a Construction Project
The latest in our Guides to Construction Law series comes from Jessica Tierney of DLA Piper UK LLP who looks at the key types of insurance cover widely used in the industry.

Early Contractor Involvement
Risks and opportunities of ECI and NEC option X22
Early contractor involvement is a growing trend as clients take on board the message that it can lead to better project outcomes. It demands more proactive management however, as Anne-Marie Friel and Sam Roberts of Pinsent Masons LLP stress in this examination of NEC’s Option X22 which provides a mechanism for managing early engagement of contractors.

Insolvency
Step Forward Step in Rights?
Alex White and Jane Hughes of Trowers & Hamlins LLP describe the benefits and disadvantages of exercising step in rights. which are exercised only rarely despite the expense incurred in negotiating them. But parties, particularly funders, insist on having them.

Final payment notices
Has your Final Payment Notice become Conclusive?
Stephanie Geesink, Counsel, and Dom Turner-Harriss of Watson Farley & Williams LLP examine a case that provides guidance on when a Final Payment notice can be challenged. The judgment is vital case law, they argue.

Collaboration
Alliancing to solve antagonism in public procurement – an Italian perspective
Professor Sara Valaguzza of the University of Milan provides an Italian perspective on what seems to be a worldwide drive towards more collaborative ways of working on construction and engineering projects. In this first part of a two part article, she argues that public contracting authorities and private parties often behave as if they were adversaries from the start, so the construction phase is constantly at risk of becoming a disputes battleground.

Insurance
Policy Drafting – an underrated skill
Our insurance expert John D Wright of JD Risk Associates warns against failing to pay attention to the drafting of policies. Could leaving it to juniors, as has often been the case, explain the sheer volume of insurance related court cases, he asks?

Alternative dispute resolution
Practical steps for meeting the JCT’s collaboration requirement
Our latest alternative dispute resolution series article comes from Tracey Summerell of Dentons UK & Middle East LLP who looks at the collaborative working aspects of the new JCT 2024 Design and Build contract.

Editor’s comment
HS2 cost control reform demanded – but will it be too late?
Editor Nick Barrett says a Public Accounts Committee report on HS2 provides little cheer to anyone hoping that the UK could somehow successfully deliver infrastructure investment on the scale highlighted recently as essential by the National Infrastructure Commission.

News
Our regular news round up includes a call from insurance companies for pilot projects to find investment models for green infrastructure; failure of another legal challenge to the Stonehenge project; and a warning that the new Building Safety Regulator is looking for a high profile prosecution to make a point.

Legal terms explained
Hao Wu of LLP explains what is meant by Provisional Sums.

Guest editor
Managing change control following the Building Safety Act 2022
Guest Editors Roddy Cormack and Katie Percy of Dentons UK and Middle East LLP warn that the new change control regime introduced under the Building Safety Act could make allocating and managing contractual risk significantly more challenging. Long underused digital tools might provide some help.

Legislation state of play table
Our regular update of legislation and procurement related developments is compiled by Alignment Media staff.

Reports from the courts
Our regular review of the court decisions of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who report on a case that reminds parties to comply with contractual notification requirements/payment obligations to avoid prejudicing their right to adjudicate; and a First Tier Tribunal decision that underlines that it has discretion under s124 of the Building Safety Act to determine whether a Remediation Contribution Order would be just and equitable.

Analysis
Courts upholding planning permissions against judicial review applications
Judicial review applications have not been having a successful time in the courts recently, with several high profile attempts to halt infrastructure projects having been refused this year. Here we examine a Scottish decision confirming that courts will maintain a non interventionist approach once planning has been granted.

CL guides
The new building safety regime
Our latest CL Guide series article comes from Rachel Chaplin of DLA Piper who examines implications of the new building safety regime.

Adjudication
Adjudication: Does size and/or complexity matter?
Patrick Heneghan of 3PB Barristers asks whether Parliament intended adjudication to used in large or complex disputes. Can challenges based on claiming that the dispute is too large or complex succeed?

Defects
The problem with RAAC: comparing liabilities, claims and remedies in Scotland and England
Julie Scott-Gilroy of Morton Fraser MacRoberts LLP explains differences between how liabilities and claims and remedies relating to the use of RAAC differ between Scots law and the rest of the UK. A key difference is the time during which claims can be made.

Claims
The reincarnation of time-barred claims
Stephanie Geesink, Counsel, and Dom Turner-Harriss of Watson Farley & Williams LLP analyse a Court of Appeal judgment that sets out how the courts will approach fire safety claims under the Defective Premises Act following the introduction of the extended limitation period in the Building Safety Act.

Planning
Client pressures for speed can raise issues for lawyers
Sarah Fitzpatrick and Carina Wentzel of Norton Rose Fulbright describe the pressures lawyers can find themselves under when clients press for speed in securing planning approvals. Speed might however introduce commercial and legal risks, they warn.

Insurance
Flood damage – an ongoing problem for insurers
Our insurance expert John D Wright of JD Risk Associates analyses the insurance aspects of flood damage. The future looks tricky for insurers and policyholders alike, he warns, as the frequency of flood events rises. .

Alternative dispute resolution
Wearing your professional mantle in negotiations (for the greater good)
In our latest ADR series article Tracey Summerell of Dentons UK & Middle East LLP stresses the importance of proper behaviour during negotiations; poor behaviour could indicate unhealthy stress levels.

Editor’s comment
Whitehall governance problem at heart of procurement inadequacies?
Editor Nick Barrett asks how long the UK can get away with the governance problem said by the head of the National Audit Office to be embedded at the heart of Whitehall when it comes to managing large scale procurements.

News 
Our regular news round up features cost plus contracts being blamed for HS2 cost overruns; details of a new Transformation Delivery Partner contract from National Highways; and a Civil Nuclear Roadmap that backs a revived nuclear building programme.

Legal terms explained
David Nitek and Noe Minamikata of Herbert Smith Freehills LLP explain what is meant by ‘hot-tubbing’.

Guest editor
Delay without reasonable excuse and criminal liability
Guest Editors Chris Bryden and Bartholomew Scholefield of 4 King’s Bench Walk warn that post Grenfell Improvement Notices to replace cladding should not be ignored, otherwise financial and criminal consequences may follow. A rash of Improvement Notices and prosecutions for failure to comply may be expected.

Legislation state of play table
Our regular round up of procurement related key announcements from government departments and agencies and third parties compiled by Construction Law staff.

Reports from the courts
Our regular analysis of court decisions of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who look at a judgment highlighting the effect of an overriding reasonable skill and care clause in consultants’ contracts; and another which provides for the first time clarification of the territorial scope of adjudication where the Construction Act 1996 has lacked in definition.

Analysis
Calling-in bonds: a summary of the landscape in light of increasing insolvency risks
Theresa Mohammed, Jonathan Clarke and Dom Turner-Harriss of Watson, Farley & Williams LLP examine issues surrounding calling-in bonds against a background of rising insolvency in construction.

CL guides
NEC4 Contracts Suite
Our latest Construction Law Guides series comes from DLA Piper’s Jon Baker who looks at key features of the NEC4 contracts suite.

Review of the Year 2023
Key case law changes in 2023 impacting construction
Joanna Higgins of Pinsent Masons looks back on the key developments of 2023 and forward to some important further developments expected during 2024. Some cases in 2023 have effectively changed the law after decades of different rules being applied.

Review of the year in Scotland
Scottish construction law review 2023
Shona Frame and Karan Kamath of CMS review the highlights of construction law in Scotland during 2023. Important developments were seen in areas including fire safety, and court rulings affecting prescription and limitation

Adjudication
Towards a model law for the adjudication of construction disputes
Barrister, arbitrator and adjudicator Karen Gough of 39 Essex Chambers chaired the drafting committee for the new Model Law for adjudication, which aims to represent the best of global current practice. She explains how the Model Law can spread the benefits of adjudication to jurisdictions that do not enjoy access to it already.

Arbitration
The SIAC Rules, 7th Edition: Faster, Better, Cheaper?
Vijay Bange and Paul-Raphael Shehadeh of Duane Morris examine key provisions of the draft new edition of the Singapore International Arbitration Centre’s Rules. Do all the provisions advance the cause of greater efficiency, expedition and cost effectiveness, they ask?

Insurance
Contracts Works policies
Insurance expert John D Wright of JD Risk Associates examines issues arising from Contracts Works Insurance policies. Not all contingencies are covered, he warns, despite policies being described as “all risks”.

Alternative dispute resolution
Turbulent times call for increased focus on dispute avoidance
In our latest alternative dispute resolution series article Aileen Banks and Tracey Summerell of Dentons UK and Middle East LLP suggest some timely measures to take to avoid disputes arising.

Editor’s comment
Evolution can disrupt more than revolution
The new Procurement Act comes into force next year. Editor Nick Barrett says much detail on how the new regime will work is still awaited, and should be carefully scrutinised when published.

News
Our regular news round up of construction law and procurement stories reports on two highly critical reports of government spending plans for schools and hospitals; and record fines being levied on a landlord and property management company for fire risks.

Legal terms explained
In our latest legal terms explained article Sienna Kim of Herbert Smith Freehills LLP looks at the often thorny issue of retentions.

Guest editor
Getting to the CRUX of project disputes and overruns
Guest Editors Charles Wilsoncroft and Helen Collie of risk mitigation and dispute resolution consultancy HKA explain the thinking behind their company’s research into the causes of project disputes and overruns. The programme, called CRUX, is based on expert diagnosis of claims and disputes.

Legislation state of play table
Our regular update of the progress of legislation and regulatory and Parliamentary scrutiny affecting construction compiled by Construction Law staff writers.

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 report on a decision that serves as a useful reminder that the right to adjudication only extends to “construction contracts: as defined in legislation; and one which, although not a construction dispute, reinforces the courts’ approach to exclusion clauses.

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Editor’s comment
‘New hospital’ design needs to be reconsidered
The promise made by former Prime Minister Boris Johnson in 2020 to build 40 ‘new hospitals’ by 2030 looked unlikely to be achieved at the time. Editor Nick Barrett comments on the National Audit Office’s progress report on those projects.

News
Our news round up features a ‘landmark’ planning decision by Secretary of State for Levelling Up, Housing and Communities Michael Gove that overturns a planning inspectorate approval; the banning of two former Directors of failed contractor Carillion; and the lunch of the Responsible Actors Scheme that requires residential developers to pay for building safety remediation work.

Legal terms explained
Our latest Legal Terms Explained article comes from Valerie Chee of Herbert Smith Freehills who examines what is meant by practical completion.

Guest editor
Contractor Insolvency and the potential impact on a construction project
Guest Editor Karen Morean of Devonshires says insolvent contractors rarely survive, whichever type of insolvency procedure is adopted. Things could get worse, and she warns that suppliers might demand larger up front payments and offer short payment terms to reduce the impact of main contractor insolvency.

Legislation state of play table
Our regular update of the progress of legislation and government procurement related developments compiled by Construction Law staff.

Reports from the courts
Our latest round up of the cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP includes a judgment providing a rare example of the circumstances in which the courts may be minded to order a stay of execution; and another that provides a reminder of the importance of clear contractual drafting.

Analysis
Efficient project management an elusive quality
HS2 is never out of the news for long, having been subject to a long series of delays, cuts, redesigns and reductions in scope, and critical reports from various overseers of public spending. July saw two reports that have added to the criticism but done little to inspire confidence that anything will improve soon.

CL guides
Claims for time, loss and expense
Our latest Construction Law Guides series article comes from Abigail Holmes of DLA Piper who explains the complexities surrounding claims for time, loss and expense.

Contracts
The Construction Playbook and effective contracting: moving the dial from vision to reality
Andrew Croft of Beale & Co, with Anna Kettle and Helen Field of Atkins, warn that contracts are becoming more onerous and being used increasingly to shift risk, which does not deliver best value or best solutions. A new approach to contracting is demanded, which the government’s Construction Playbook points towards.

Why fluctuation clauses must now be a central feature in JCT contracts
Phil Caton of Aaron & Partners argues that against a background of high construction price inflation contributing to a rising number of contractor insolvencies, fluctuation clauses should be a central feature in JCT contracts.

Arbitration
Refinements and Reforms of the Arbitration Act 1996: Reforming Landmark Legislation
Vijay K Bange and Paul-Raphael Shehadeh of Duane Morris consider the likely impact of reforms and refinements proposed to the Arbitration Act 1996 following consultations. Proposed reforms represent a welcome update to this landmark legislation, they argue.

Payments
Timing and validity of pay less notices
Stephen McKenna of Quigg Golden analyses a case that highlights the importance of the timely sending of valid payment certificates and pay less notices. Paying parties under construction contracts should ensure that for any pay less notices it issues to be deemed valid, they must refer to respective payment cycles.

Insurance
Employer’s Liability and Disease Claims
Insurance expert John D Wright of JD Risk Associates examines issues surrounding employer’s liability insurance and disease claims, which have been a problem for many years and look like keeping the courts busy for years to come.

Alternative dispute resolution
Can one adjudication decision be set off against another?
A recent decision in FK Construction Ltd v. ISG Retail Ltd [2023] EWHC 1042 (TCC) provides a useful reminder that limited circumstances apply for set-off to arise in adjudication enforcement, as Millie Leonard and Amanda McGrath of Dentons UK and Middle East LLP report.