Contents

Editor’s comment
Amicable dispute resolution clauses could be a holy grail
Editor Nick Barrett warns that lack of overseas investor confidence could hamper hopes to attract them to invest in UK utilities, but asks if they are investors that the UK wants?

News
Our regular news round up focusses on a report calling for a comprehensive reform of the Private Finance Initiative model used previously to support a new generation of privately financed infrastructure; a warning that the Procurement Act delay could stall contract awards; and doubts about the chances of a new large nuclear plant at Wylfa.

Legal terms explained
Tse Wei Lim and Wei Qi Ng of Herbert Smith Freehills LLP examine what is meant by Disruption.

Guest editor
Covid lessons for force majeure and reasonable endeavours
Guest Editor Daniel Warren of DLA Piper UK LLP finds a key lesson learned from the Covid pandemic was the importance of properly negotiated and understood force majeure clauses. The pandemic proved the value of collaborative approaches.

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 the court decisions of most interest to construction comes from Andrew Croft, Benjamin Spannuth and Daniela Miklova of Beale & Company Solicitors LLP, who look at a Court of Appeal ruling relating to termination rights; and another that says true value adjudications cannot commence before the amount awarded in a previous adjudication regarding a dispute in the same payment cycle is paid.

Analysis
Supply chain compliance issues in Saudi Arabia
James Daniell and Julian Haslam-Jones of Alvarez & Marsal Disputes and Investigations Dubai office consider the growing importance of compliance issues in Saudi Arabia. Non-compliance with local laws and international standards can result in financial penalties, delays, additional costs and reputational damage, they warn.

CL guides
Variations
The latest in our Construction Guides series comes from Daniel Warren of DLP Piper LLP who explains what you need to know about variations.

Regulatory system
Key recommendations of the Grenfell Tower Inquiry Report
Katherine Metcalfe of Pinsent Masons examines the key recommendations of the Grenfell Tower Inquiry Report that she says makes for sobering reading. The residents of the Grenfell Tower were comprehensively let down by a broken regulatory system whose repair will have a far reaching impact on the construction industry.

Grenfell Inquiry
Grenfell Inquiry findings
Ed John and Nadine Obayda of Keystone Law focus on the implications for manufacturers of construction products following publication of the Grenfell Tower Inquiry Report. Litigation is expected to follow now the report has been published, and residents and leaseholders with dwellings unfit for habitation will generally find it easiest to claim losses against the contractor or developer under the DPA 1972.

Limitation
Where’s the trigger?
Karen Gough of 39 Essex Chambers examines a recent case concerning a claim under the NHBC’s Buildmark certification and insurance scheme. A key question raised was when does time start to run for claims under the scheme; an issue needing further clarification.

Collateral warranties
Most collateral warranties will not be construction contracts, rules Supreme Court
Collateral warranties are not contracts according to a Supreme Court ruling that overturns a position established eleven years ago by the Appeal Court. Scott Stiegler, Bradley Linday and Xara Kaye of Vinson & Elkins say that parties wanting to capture the benefits of adjudication might now include express adjudication clauses in collateral warranties.

Insurance
Delayed Completion Coverage
Insurance expert John D Wright warns against overlooking revenue losses from delayed completions of projects when seeking insurance cover. Increasing use of private finance on public sector schemes will likely lead to increasing demand for such policies.

Alternative dispute resolution
Mediation in the Middle East
Our regular alternative dispute resolution series article comes from Suzannah Fairbairn and Melissa Mallon of Dentons UK and Middle East LLP who report that mediation is seeing increasing use to resolve disputes in the Middle East.

Editor’s comment
Construction needs longer public sector spending plans time horizon
Editor Nick Barrett welcomes recommendations in a new report that government introduces longer term planning horizons for public sector investments.

News
Our regular news round up focusses on a National Audit Office report into the costs of scaling back the HS2 project; the Environment Agency blaming years of under investment for water sector problems; and a £3 million fine for fatal accident safety failings.

Legal terms explained
Wei Qi Ng of Herbert Smith Freehills LLP examines what is meant by constructive acceleration.

Guest editor
Collaborative contracting in the UK construction industry
Guest Editor Mark Macauley welcomes the shift to collaboration from the industry’s traditional adversarial relationships. Some standard form contracts have some way to go however before they can be regarded as truly collaborative.

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 judgments of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who look at an appeal ruling emphasising that the Building Safety Fund’s objective is ensuring that remediation works are completed ’as quickly as possible’, irrespective of recoveries from third parties; and a judgment reaffirming the courts’ reluctance to exercise powers under s44(3) of the Arbitration Act 1996 and to interfere with arbitral proceedings.

Analysis
Skill shortages and planning reform at the heart of problems facing infrastructure
Infrastructure procurement looked like enjoying a bit more favourable attention under the new government than it has since the introduction of the austerity programme of former prime minister David Cameron and his chancellor George Osborne some 14 years ago. Is this early promise already being eroded?

CL guides
Project Bank Accounts
Our CL Guide comes from Ross Campbell of DLA Piper who explains how Project Bank Accounts are being used. Public sector use is growing but the private sector might need the spur of legislation to promote their uptake, he suggests.

Adjudication
Clarity but not closure from landmark Supreme Court decision
Barry Hembling of Watson Farley & Williams LLP reports on a landmark supreme court ruling that provided the first strong guidance on what constitutes a construction contract for adjudication purposes. Unresolved issues might generate satellite litigation, he warns.

Limitation periods
The DPA 1972 landscape post Vainker v Marbank Construction
Georgia Whiting and Gabriela Trinanes of Ardmore examine a case that they find provides essential reading for those grappling with a range of issues thrown up by the extended limitation periods pursuant to the Building Safety Act 2022. Uncertainty remains over the scope and extent of extended liability under the Defective Premises Act 1972, they warn.

Artificial Intelligence
Technology in construction disputes – managing data and proving claims
Chiara Pieri and Zosia Zakrzewska of CMS update an article on Technology in Construction Disputes – Managing Data and Proving Claims (CL Vol 33 No 7), analysing the impact of AI, improved construction data management technology and new legal tech tools on construction disputes.

Remediation orders
The Heart of the Building Safety Act 2022: Leaseholder Protection
Chris Bryden and Daniella Adeluwoye of 4 King’s Bench Walk explain the impact of a decision from the First-tier Tribunal confirming that there is a discretion rather than an obligation to make a Remediation Order where the relevant criteria are made out, potentially making it harder for applicants to succeed in obtaining such orders. This is a new and developing area of law however, so watch this space.

Insurance
Causation – Friend or Foe?
Insurance expert John D Wright explains how the courts view the principles of construction and causation relating to disputes that come before them. Policy holders have often been caught out by nuances of wording in the past, but the courts have recently shown a more flexible approach.

Alternative dispute resolution
Adjudication and collateral warranties
In our latest Alternative Dispute Resolution series article Kirsti Olson of Dentons UK and Middle East LLP considers the implications for ADR arising from a landmark Supreme Court decision.

Editor’s comment
Supreme Court judgment likely to lead to more judicial reviews
Editor Nick Barrett warns that a Supreme Court judgment is likely to see an increase in the already growing number of judicial review challenges to infrastructure projects. Planners could respond with knee-jerk rejections of some applications, it is feared.

News
Our regular news round up includes a landmark Supreme Court judgment that will affect many major infrastructure projects; transparency concerns over the burgeoning use of framework agreements; and a council victory in a judicial review involving a private finance initiative roads project.

Legal terms explained
Isabella Salame of Herbert Smith Freehills LLP examines what is meant by unforeseen ground conditions.

Guest editor
How should lawyers articulate the odds of success?
Guest Editor Paul-Raphael Shehadeh of Duane Morris draws on the work of a CIA analyst to examine how sure lawyers might be when they advise clients of the chances of success in legal actions. They could be likely to be right probably some of the time!

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 Reports from the Courts on the cases of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who find in one an important reminder to parties settling litigation by way of Tomlin orders to ensure that the provisions are carefully drafted to prevent future claims arising in connection with the same contract or the dispute; and another that is the first decision to consider a Remediation Order (RO) application where a Grant Funding Agreement and contract for remediation works exists.

Analysis
General election promises focus on infrastructure – but will they be delivered on?
The Main Party Manifestos and what they say about Construction. Stephanie Geesink, Counsel, and Dom Turner-Harriss of Watson Farley & Williams LLP inspect the general election manifesto promises of the main parties, who all have a focus on infrastructure and planning reform. To what extent will these pledges translate into policies, they ask.

CL guides
Alliance Contracting
Our latest Construction Guides series article comes from Rachel Chaplin of DLA Piper LLP who explains the increasingly popular Alliancing approach to contracting

Contracts
New or simply tweaked? A brief review of the JCT 2024 edition
Donald Warnock and Rae Ahmed of Norton Rose Fulbright LLP examine the recent updates to the Joint Contracts Tribunal Design & Build contract. Fitness for purpose obligations have been expressly excluded, which will be welcomed by contractors, they suggest.

Limitation
The limits of limitation of liability clauses
Barristers Chris Bryden and Georgia Whiting of 4 King’s Bench Walk review recent case law affecting the use and limits of limitation clauses, which reaffirms that the courts are likely to take a strict approach to the construction of an exclusion or limitation clause, particularly where the right in question is a valuable one.

Drafting
Current drafting trends in construction law
Jamie Bell of Watson Farley & Williams LLP examines some current trends in the drafting of construction contracts against a background of changing regulations and rising insolvencies.

Alliancing
Alliancing to solve the enigma of antagonism in public procurement
In the second of her two part series on collaboration in the Italian public sector, Professor Sara Valaguzza of the University of Milan describes how collaborative procurement is growing in Italy, as knowledge of the benefits of alliancing spreads.

Insurance
Building Defects – choosing the right insurance
Building defect claims are a constant source of litigation, which the insurance market has a range of products to provide cover for. Our insurance expert John D Wright explains how choosing the right type of insurance is crucial.

Alternative dispute resolution
Mediation’s star continues to rise
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East LLP reports that mediation is increasingly being used in dispute resolution thanks partly to judicial support.

Editor’s comment
Work will flow soon from giant water investment programme
The water industry’s giant AMP 8 investment programme will place procurement under the spotlight, says Editor Nick Barrett.

News
Our regular news round up includes a survey saying collaboration is on the rise; Network Rail promises a partnering approach in its new framework; and a warning that carbon reduction policy risks legal challenge.

Legal terms explained
Isabella Salame of Herbert Smith Freehills LLP explains what is meant by non-delegable duties.

Guest editor
JCT 2024 ducks the difficult issues
JCT’s Design and Build contract has been updated for the first time in eight years. Guest Editor Barry Hembling of Watson Farley & Williams LLP asks whether the updates are keeping pace with fast moving developments in construction law?

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 Reports From the Courts series article comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who look at a judgment confirming that, whilst a defect must be more than only aesthetic or inconvenient, the design intent of the property in question is relevant and that the measure of damages must reflect the likely outcome had the services been provided in a professional manner; and another that provides some clarification for parties seeking or responding to Building Liability Orders.

Analysis
Construction awaits clarity on energy investment
Is the UK making credible progress towards securing our energy supplies or is it, as researchers suggest, actually going backwards in terms of achieving commitments made only two years ago?

“Worst client in the UK” issues revised terms and conditions
New, in-house terms and conditions of contract are to be used by Transport Scotland for the Tay Crossing to Ballinluig project, part of the much delayed £3.7 billion A9 Dualling programme. This might be good news, but given that the new terms and conditions are being issued by the alleged “worst client in the UK” should any great hopes be raised just yet?

CL guides
Force Majeure, Frustration and Construction Contracts
In our latest Construction Guides series article Tom Manley of DLA Piper UK LLP explains the legal principles behind Force Majeure clauses and their practical implications.

Artificial Intelligence
The Future of Artificial Intelligence in Resolving Construction Disputes
Andrew Drennan and Niall Tutt of Alvarez & Marsal Disputes and Investigations review the role of the construction expert in conjunction with the rising use of artificial intelligence (AI). Disputes might benefit from early analysis of delays, cost overruns and evidence-based mitigation made possible.

Contractor insolvency
Where there is a (living) will, there is a way
Isobel Moorhouse and Jane Hughes of Trowers & Hamlins LLP explain what a ‘Living Will’ is, and ask whether the concept be adapted by employers to apply to contractor insolvencies?.

Adjudication
Smash and grab adjudications – getting your money back
Doug Wass of Macfarlanes argues that the Construction Act has been working in so far as industry cash flow has been improved, but the principle that a payor must pay the payee the Notified Sum if the payor fails to issue a valid payment notice or pay less notice has given rise to some risks of injustice that the courts are still grappling with.

Arbitration
Restructuring versus arbitral awards – will the debt survive?
Paul-Raphael Shehadeh of Duane Morris analyses a dispute that will be of great interest to insolvency and international arbitration practitioners, that highlights the benefits of a negotiated dispute settlement.

Insurance
Joint names clauses under scrutiny again
Our insurance expert John D Wright of JD Risk Associates examines Joint Names Clauses which have been in use for over 40 years and were hoped to result in less litigation, but the industry still struggles to gain the benefits and court analysis of clauses themselves is common.

Alternative dispute resolution
Conditions Precedent and Amendments to Contract – a Cautionary tale for Scottish Contractors
Cheryl Ferguson of Dentons UK and Middle East LLP looks at a Scottish case that provides a cautionary tale on acceptance of amendments that rob the contractor of alternative routes of recourse.

Editor’s comment
Government go-slow on infrastructure investment shows no signs of abating
Editor Nick Barrett asks with a general election looming, if there is any prospect of a reversal in years of underinvestment in the UK’s infrastructure. The government’s own net zero carbon targets are at risk if the speed of delivery of investments isn’t increased.

News
Our news round up looks at Birmingham City Council on the verge of starting the judicial review application to try and reverse a government refusal to approve a major highways contract; a warning to avoid ‘group think’ in major public sector project delivery; and a new framework to promote the use of artificial intelligence in project delivery.

Legal terms explained
Kyle Melville of Herbert Smith Freehills LLP explains what is meant by Scott Schedules.

Guest editor
Retentions – time to say goodbye?
Guest Editors Jane Hughes and Isobel Moorhouse of Trowers & Hamlins LLP say that despite years of industry campaigning the end of retentions is not in sight. Minimum standards suggested by Build UK have not been taken up by the industry, which is split on the issue, and legislation would be needed to break the impasse.

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 analysis of the 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 case that, among other things, provides guidance on the impartiality of adjudicators and the true construction of the bespoke payment terms agreed; and another that highlights the importance of commencing contractual negotiations early with a view to concluding them before commencing works.

Analysis
New building control changes have far reaching implications
Barry Hembling and Marcus Hensher of Watson Farley & Williams analyse changes introduced this month under the Building Safety Act that fundamentally reform building control, but have attracted little attention.

CL guides
Limitation on liability
Our latest Construction Law Guides series article from Claire Turnbull of DLA Piper looks at limitations on liability. Limitation clauses are interpreted strictly, so clear and unambiguous language should be used where a party seeks to limit liability for losses that would otherwise be recoverable.

Payments
Payment notices and contract mechanisms: the latest lessons
Kim Simon-Robert and Vaila Hornsby of Dentons UK and Middle East LLP analyse the critical aspects of payment provisions within construction contracts with regard to the latest case law, which serves as a reminder for parties to comply diligently with both the contractual and statutory requirements governing payment.

Termination
Spiking the guns of trigger-happy contractors
Barrister Nick Kaplan of 3 Paper Buildings analyses a Technology and Construction Court decision in the first case where it considered whether a contractor had validly exercised a right to terminate under a JCT contract. Permission to appeal has already been granted.

Termination
Termination: fortune may favour the brave (and well-prepared)
Termination of contracts is on the rise, even though it is still regarded as a last resort, one that carries risks. Terminating parties should treat the process as a project in its own right, advise Angus Rankin, Mat Parente and Jess Webster of Vinson & Elkins.

Building safety
First-Tier Tribunal confirms that developers, landlords and their associates must bear the costs of building safety defects
The impact of the first case shedding light on the likely scope of Remediation Contribution Orders under the Building Safety Act is examined by Doug Wass, Angus Dawson, Mark Lawrence and Andy Mather of Macfarlanes.

Insurance
Assessing the Design and Build Risk
Our regular expert insurance market commentary from John D Wright of JD Risk Associates looks at the available design and build risk cover available. Expect greater information requirements from underwriters in the wake of Grenfell before cover is provided, he warns.

Alternative dispute resolution
Non-disclosure agreements in settlement: they are not all bad!
Our latest alternative dispute resolution series article looks at the use of non disclosure agreements when settlements are reached. Tracey Summerell of Dentons UK and Middle East LLP says they have their place but need to be carefully considered.