Construction Law August/September 2017

Editor’s comment
New risk assessment attitude rings changes
Construction has responded positively to calls for a cross-industry response to the Grenfell Tower disaster. Editor Nick Barrett also sees growing support for calls to reintroduce a clerk of works type function as new attitudes to risk management take hold.

News
Our news round up focusses on new guidance from the TCC on public procurement related cases; new consultation on corporate manslaughter sentencing; and the rising level of health and safety fines.

Legal terms explained
Olivia Liang and Michael Mendelblat of Herbert Smith Freehills LLP explain what is meant by estoppel.

Guest editor
Consequential losses and exclusion clauses
Guest editor Jane Fender-Allison of CMS examines a change in the wind around consequential losses and exclusion clauses. She argues that a number of recent cases have opened the door to a more straightforward and commercial approach.

Legislation state of play table
Clyde & Co provide our regular round up of the progress of legislation as it makes its way through the UK and EC legislative systems. Alexander Ghandi and Emily Morris discuss the briefing paper on Planning for Nationally Significant Infrastructure Projects.

Reports from the courts
Our regular round up court cases of most interest to construction from Andrew Croft and Nadir Hasan of Beale & Company LLP includes a decision in which the slip rule proved crucial; and one where the court supported the view that an insured’s policy is not disclosable.

Contracts monitor
New contract gets on the case
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, casts his eye over the JCT Repair and Maintenance Contract (Commercial) 2016. The contract warns that specialist insurance advice should be sought.

CL guides
CL Guide to: Price and payment
Clare Rushton reviews the main ways in which price and payment are dealt with in construction contracts in the latest of our Guides from DLA Piper.

Contracts
NEC4: A collaborative challenge to project management
Former NEC drafting panel adviser Tony Backler and Stephen Woodward of Resolex examine the newly launched NEC4 which aims to help bring construction procurement into the 21st Century. Alliancing and risk management are key themes of the new contract.

Legislation
Health and safety – the need to go above and beyond
High fines and prison sentences for health and safety breaches are becoming more common. Helen Bowdren and Gurbinder Grewal of Dentons consider the new challenges facing construction.

Arbitration
Has the sun set on South Africa’s arbitration ambitions?
Kemi Adekoya and Michael Mendelblat of Herbert Smith Freehills LLP look at the new Arbitration Bill recently introduced to the South African Parliament that will apply to international arbitrations, which should increase its appeal as an arbitration venue.

Payments
Getting your own back
Louis Zvesper of Hardwicke analyses a recent case that highlights the risk of over-payments not being returned to the out of pocket by the courts, and highlights some of the situations in which this can happen.

Insurance
Correct claims are crucial
Insurance expert John D Wright of JD Risk Associates warns that correct procedure must be followed in making claims under insurance policies – but many claimants fail to even notify their insurer that a claim has arisen.

Alternative dispute resolution
Don’t slip on the ‘slip rule’
Our latest alternative dispute resolution series article, from Jamie Calvy of Clyde & Co LLP, urges caution when using the slip rule if an adjudicator’s decision is to be challenged.

Construction Law: July 2017

Editor’s comment
Time to refocus on quality
Editor Nick Barrett argues for a cross industry approach to analysing what has happened to the construction industry’s approach to quality, called into question by disasters in London and Edinburgh.

News
Our regular news round up focuses on the fallout from the Grenfell Tower disaster; launch of the NEC4 contracts; and more schools defects revealed in Edinburgh.

Legal terms explained
Frustration and force majeure are explained by Emma Kurtovich and Michael Mendelblat of Herbert Smith Freehills.

Guest editor
Judges backing off common sense approach?
Guest editor Vijay Bange of Trowers & Hamlins LLP views the courts’ attitude to interpreting contracts. The commercial common sense versus literal interpretation of words used conflict is unresolved, he says.

Legislation state of play table
Our regular update of the progress of legislation as it passes through the UK and EC legislative systems is provided by Clyde & Co, with a commentary on new payment practices legislation from Richard Kniveton and Ana Bonnington.

Reports from the courts
Our regular review of cases of most importance to construction comes from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP, including one highlighting the potential dangers of giving ad hoc and free advice as a business development initiative; and another showing how a widely drafted limit of liability clause may still be reasonable and therefore enforceable under unfair contract terms legislation.

Contracts monitor
Digitising benefits not fully realised
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of the JCT Minor Works Building Contract. Some 35 years since JCT Forms were first digitised, full advantage has not yet been taken of the wide range of searches which digitising permits, he says.

CL guides
CL Guide to: adjudication
Michael Tomlinson of DLA Piper presents the latest in our Construction Law guides series, explaining how the adjudication regime works. A useful checklist is provided to help steer through what can be a tricky course.

Legislation
The legal challenges of Brexit for construction projects
Brexit poses particular challenges for those drafting and negotiating contracts for construction projects in the UK, explain Peter Kitson and Mark Fletcher of Russell-Cooke LLP in this overview of the risks.

Adjudication
Adjudicator not bound to accept answers
Stephen Radcliffe of Walker Morris LLP reviews a recent case dealing with jurisdiction and natural justice arguments, in which the court also commented on serial adjudications, severance of decisions, and the use of ‘catch all’ provisions in notices of adjudication and referral notices.

Contracts
PSA 2017: striking the right balance?
Jennifer Badham of Withers LLP looks at the ACE Professional Services Agreement from an employer’s perspective. The new version doesn’t go far enough to strike a balance between the interests of consultants and their clients and funders, she concludes.

Minimum acceptable performance levels
Failing to meet performance related criteria can lead to termination of contracts, so clauses need careful drafting, and reading. Suriya Edwards of Geldards LLP reports on a case that offers a guide to how the courts will interpret contracts containing performance clauses.

Insurance
When is damage not a defect?
Insurance expert John D Wright of JD Risk Associates explains the cover available for defects, which insurance companies as a rule do not feel they should be liable for. Claims can be affected by details of what is insured damage and what is a defect.

Alternative dispute resolution
Injustice not to be simply assumed
In our latest alternative dispute resolution series article Rupert Coldwell of Clyde & Co examines an attempt to remove arbitrators for allegedly failing to properly conduct proceedings.

Construction Law: June 2017

Editor’s comment    
Construction and lawyers face same wave of change
Collaboration and innovation are regarded as essential for improving construction performance, but they might not be enough. Editor Nick Barrett reports on warnings technological changes will force even more sweeping changes across all industries.

News 
Our news round up this month features a trial for Integrated Project Insurance; a survey showing that fines for health and safety breaches have doubled; and imprisonment for three company directors following the death of a worker.

Legal terms explained
James Doe and Philip Parrott of Herbert Smith Freehills LLP explain what is meant by the term material breach.

Guest editor
FAC-1: £9.5 billion in its first year
Guest editor Professor David Mosey of King’s College London Centre of Construction Law reports on the first year of use of the FAC-1 Framework Alliance Contract. A major success has been its adoption by the Crown Commercial Service on its £2.8 billion national frameworks of project managers and architects.

Legislation state of play table
Our regular update of the progress of legislation as it passes through the UK and EC legislative systems is provided by Clyde & Co, with a commentary on the recent Nuclear Decommissioning Authority case by George Bazinas and Alexander Ghandi.

Reports from the courts
Our regular round up of the court cases of most interest to construction, by Simii Sivapalan and Andrew Croft of Beale & Company Solicitors LLP, looks at a decision shedding light on how the courts interpret the NEC3 ‘mutual trust and cooperation’ obligations; and another highlighting the perils of lengthy and document heavy contracts.

Contracts monitor
Termination a major complexity on minor works
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues to scrutinise the JCT Minor Works contract, particularly its insurance provisions. Not all defined terms being used are found in the definitions list.

CL guides
CL Guide to: Letters of intent 
Jennie Price of DLA Piper presents the latest of our ‘nuts and bolts’ guides to construction law, explaining how letters of intent work and pitfalls to watch out for.

Contracts
Introducing NEC4 – what changes are proposed?
Anthony Albertini and Emily Morris of Clyde & Co LLP take an early look at the promised changes that NEC4 will contain. Will an over reliance on Z-clauses be ended?

Modern slavery
Transparency and the Modern Slavery Act 2015
Larger companies now need to publish annual statements about their anti-human slavery policies. Suriya Edwards of Geldards explains what has to be done to avoid falling foul of the modern slavery legislation.

Termination
Termination for convenience seldom a two-way street
Marie-Therese Groarke of Withers examines case law relating to ‘termination for convenience’ clauses, which are increasingly being used as nervousness caused by volatility induced by Brexit and falling oil prices grows.

Variations
Valuing variations in the Middle East
Andrew Jones of Dentons warns that contractual rates that overstate the value of contract items can come back to haunt contractors, as some are finding against a background of falling demand in the Middle East.

Insurance
Plant hire imposes onerous conditions
Insurance expert John D Wright of JD Risk Associates warns of the possible insurance problems faced when covering risk of damage and theft to hired plant. More than one policy might have to be in place, he warns.

Alternative dispute resolution
How not to resist enforcement of an adjudicator’s decision
In our latest alternative dispute resolution series article Nathanial Horrocks-Burns of Clyde & Co analyses a TCC case that can be taken as a guide on how not to challenge an adjudicator’s decision.

Construction Law: May 2017

Editor’s comment    
Procurement off the rails
Editor Nick Barrett say the HS2 conflicts of interest controversy suggests that the UK’s procurement problems extend well beyond the usual civil service whipping boys.

News
This month’s news round up focusses on further developments in the Edinburgh school building scandal; a survey alleging a disconnect between law firms and their clients; and a report suggesting employees would not report unethical business behaviour because of career fears.

Legal terms explained
Ann Levin and Kemi Adekoya of Herbert Smith Freehills explain on demand and conditional performance bonds.

Guest editor
Keep calm and carry-on
Guest editor Darryl Royce of Atkin Chambers says the position relating to debt recovery costs in adjudication remains unclear despite a court ruling that many seem to think has brought clarity.

Legislation state of play table
Our regular update of the progress of legislation as it passes through the UK and EC legislative systems comes from Clyde & Co. Jamie Calvy and Emily Morris provide a commentary on the Budget.

Reports from the courts
Our regular review of the cases of most interest to construction from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP focuses on a ruling that highlights the importance of keeping an eye on limitation periods when counterclaims may be likely; and one that underlines the importance of issuing payment and/or pay less notices in time.

Contracts monitor
Consistent wording hard to achieve
Contracts monitor Michael Phipps, Principal of Thurston Consultants, scrutinises the insurance provisions of the JCT Minor Works Building Contract. Keeping insurers abreast of changes to wordings of clauses is essential, he cautions.

CL guides
CL Guide to: Two stage tenders
In the latest of our ‘nuts and bolts’ guides Rachel Chaplin of DLA Piper explains how two stage tendering works. A key benefit of this approach is early contractor involvement, but there are also potential drawbacks.

Collaboration
Collaborative consulting  
Three new forms of professional services contract have been published in the early months of 2017, by the ACE, the IChemE and FIDIC. All seek to promote collaborative ways of working, as Tom Pemberton of Beale & Company Solicitors LLP explains.

Procurement
Teething problems with Scottish public procurement
After a year of life under the new Scottish public procurement rules Graeme Young and Helen Fyfe of CMS Cameron McKenna LLP examine how they are bedding in. The goal of a quicker and simpler tendering process is still to be achieved, they find.

Arbitration
More transparency in arbitration
Raid Abu-Manneh, Juliana Castillo and Rachael O’Grady of Mayer Brown examine the new ICC Rules 2017 and explain their potential impact on construction arbitrations. More transparency is promised, which could be of benefit.

Contracts
Is NEC Option X.15 fit for purpose?
NEC reverses the normal burden of proof for defects, placing the onus on the contractor to prove that his design was not defective. Max Wieliczko and Katherine Doran of Holman Fenwick Willan LLP ask whether NEC’s ‘reasonable skill and care’ contractors’ design option is really fit for purpose.

Insurance
Joint names clauses create own problems
Insurance expert John D Wright of JD Risk Associates reviews the development of joint names insurance clauses in construction contracts, noting that they have not prevented disputes reaching the courts. Who bears the risks in any given situation continues to be a question not always easily answered.

Alternative dispute resolution
Security and arbitral awards
In our latest alternative dispute resolution series article David Owens and Rebecca Evans of Clyde & Co LLP report on a Supreme Court ruling on a very long running dispute that provides clarity on aspects of the arbitration enforcement regime.

Construction Law: April 2017

Editor’s comment    
Out with the old normal – in with the new? 
Editor Nick Barrett says evidence that government efforts to improve procurement are working should be welcomed; but old Whitehall practices might yet scupper their efforts.

News
Our news round up includes launch of a new suite of contracts including a Professional Services Agreement; a warning that government procurement reforms might fail if ministerial attention wavers; and a £100 million compensation bill arising from a botched nuclear procurement.

Legal terms explained  
James Doe and Emma Kurtovich of Herbert Smith Freehills explain what is meant by the prevention principle.

Guest editor
Latent Damage Act 1986 – time for reform
Guest editor Marie-Therese Groarke of Withers argues that the Latent Damage Act is largely redundant in most negligence cases involving latent defects, and either it or the law relating to economic loss is in need of reform.

Legislation state of play table
Our regular update of the progress of legislation as it passes through the UK and EC legislative systems comes from Clyde & Co. Richard Kniveton and Tim Saxon comment on the recent housing White Paper.

Reports from the courts 
Our regular round up of the court decisions of most interest to construction from Andrew Croft and Simii Sivapalan of Beale & Company LLP includes a decision highlighting that payment notices need to be free from ambiguity; and another confirming a trend for courts to adopt a common sense approach to liability limiting clauses.

Contracts monitor
Valuation no invite to creative thinking
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of the JCT Minor Works Building Contract, turning to the procedure for payment applications.

CL guides
CL Guide to: NEC3 (Part 2)
This second part of our guide to the NEC Engineering and Construction Contract (ECC), by Jon Gaskell, a Legal Director at DLA Piper, focusses on key aspects of core cll 6 to 9, together with the dispute resolution options, secondary option clauses and contract data.

Payments
Court expands on pay less issues
Andrew Croft and Stephen Jones of Beale & Company Solicitors LLP review how the courts view payment and pay less notices in the light of recent decisions. The overall picture will be looked at when considering whether a notice is valid, they argue.

A trump card for employers
In the second of our articles concerning pay less notices Suriya Edwards of Geldards LLP analyses a recent case that helps legitimise employer friendly contractual terms, highlighting how employers can use pay less notices to manage cash flow.

Forecast
Expected legal and litigation trends in 2017
Charlie Thompson of Hardwicke looks into the crystal ball to make some predictions about what the rest of 2017 might hold for the industry’s legal picture. Much uncertainty lies ahead in several key areas, he warns.

Diversity
Pressure rises to increase diversity
How diverse is the construction industry as a workplace, ask Akin Akinbode, Sarah Beeby, Esther McDermott and Michael Wright of Dentons. Pressure is mounting to increase diversity with new regulations on gender pay in force from April 2017.

Insurance
Inherent defects insurance popularity growing
Inherent defects insurance has never been popular in the UK but, says insurance expert John D Wright of JD Risk Associates, the traditional view of it as just an onerous and unnecessary cost is changing.

Alternative dispute resolution
Mediation – an introduction
Our latest alternative dispute resolution article from Clyde & Co’s Christopher Leadbetter explains the benefits of mediation.

Construction Law: March 2017

Editor’s comment    
Matron could cure schools of scandal
Private finance has been given the all clear by the Construction of Edinburgh Schools inquiry but the entire UK construction industry’s quality assurance approach has been called into question, says Editor Nick Barrett.

News
Our regular news round up focuses on a survey showing major contractors are owed over £1bn in retentions; an inquiry into defective school buildings; and a survey showing that the level of health and safety fines of over £1m is rising dramatically.

Legal terms explained
Ann Levin and Michael Sharp of Herbert Smith Freehills explain concurrent delay.

Guest editor
Construction costs: a call to action
Guest editor Paul Lowe of Weightmans LLP, a member of the Forum of Insurance Lawyers (FOIL), examines research that points the way towards reducing the errors that give rise to construction disputes. Losses from errors exceed the industry’s annual profits.

Legislation state of play table
Clyde & Co provide our regular update on the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Lois Putnam and Alex Devereux comment on new government procurement guidance.

Reports from the courts
In our regular round up of the court decisions of most interest to construction Andrew Croft and Simii Sivapilan of Beale & Company Solicitors LLP report on a shipbuilding dispute where the court gave a wide interpretation to an exclusion of ‘consequential loss’; and another confirming that an adjudication on a failure to issue notices in relation to an interim payment will not prevent a party commencing a second adjudication in relation to the value of the works.

Contracts monitor
Wordy clauses need to be simplified
Our contracts monitor, Michael Phipps, Principal of Thurston Consultants, scrutinises the new JCT Minor Works Building Contract and welcomes some helpful changes. Some clauses remain longer than they need be, he argues.

CL guides
Construction Law Guide to: NEC3
In the first instalment of a two part article, our latest CL Guide, from Corinne McCarthy of DLA Piper LLP, looks at the NEC Engineering and Construction Contract.

Arbitration
Emergency arbitrators and expedited tribunals   
The unavailability of emergency relief has often been cited in the past as a drawback of arbitration. James Doe and Robin Wood of Herbert Smith Freehills report that emergency provisions are now available and working well.

Adjudication
Recovery of costs in adjudication – a missed opportunity?
Vijay Bange of Trowers & Hamlyns LLP reports on a court ruling that represents a conceptual shift from the previous established position for costs recovery under the Construction Act. An authoritative statement on the applicability of the Act to the recovery of a party’s costs in recovering a debt in adjudication is now needed.

Payments
Paying for your mistakes
Recent court rulings have highlighted the dangers of failing to issue pay less notices. Jennifer Badham of Withers reports on a case that provides at least some relief for paying parties who fail to issue notices on time at final account stage.

Procurement
Slow procurement might hinder new market
Cecily Davis and Zina Leseanu of Fieldfisher say the government’s new industrial strategy, which places construction at the heart of plans to reinvent the UK, will mean a new dawn for district heating projects. Here, they consider some of the procurement challenges that will arise.

Insurance
Damage to the works – loss of revenue
Insurance expert John D Wright of JD Risk Associates explains issues surrounding consequential losses, which contract works policies will specifically exclude.

Alternative dispute resolution
Promoting conflict avoidance
An industry wide clamour for collaborative working and conflict avoidance procedures is starting to be reflected in contracts, says Chris Kerr of Clyde & Co in our latest alternative dispute resolution series article.

Construction Law: January/February 2017

Editor’s comment    
Procurement focused strategy published
Editor Nick Barrett finds a range of familiar messages about post-Brexit procurement in the government’s industrial strategy Green Paper. The fact that Prime Minister Theresa May is spearheading these strategic reforms could make the difference this time.

News
Our news round up this month includes evidence that the HSE’s fee for intervention scheme doesn’t raise enough to pay for its costs; calls for government to detail how UK court decisions can be enforced internationally post-Brexit; and a World Bank report highlights public procurement shortfalls in 180 countries.

Legal terms explained
Ann Levin and Michael Sharp of Herbert Smith Freehills explain what is meant by assignment.

Guest editor
Reassessing adjudication
Guest editor Stephen Woodward of project consultancy ResoLex says compulsory adjudication is adversarial and pulling against the industry drive towards collaborative ways of working. The time is ripe for the culture change needed to foster collaboration, leaving adjudication as a true last resort.

Legislation state of play table
Clyde & Co provide our regular round up of the progress of legislation as it makes its way through the UK and EC legislative systems. Alexander Gandhi and Iain Boyle comment on the new edition of the Pre-Action Protocol for Construction and Engineering Disputes.

Reports from the courts
Our latest look at recent court decisions from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP focuses on two disputes over oral contracts; one with major implications for ‘smash and grab’ adjudications; and the other highlighting the importance of agreeing costs and the basis of their calculation at the start of any construction contract.

Contracts monitor
Red type a warning of problems ahead
Contracts monitor Michael Phipps, Principal of Thurston Consultants, examines Contract Particulars of the JCT’s new Minor Works Building Contract. Don’t be lulled in to a false sense of security by the changes to this version, he warns, there are complications to come.

CL guides
A beginner’s guide to: JCT contracts
In the first of a new series of nuts and bolts guides to construction law topics from DLA Piper, Rachel Chaplin explains the basics of selecting which of the JCT’s range of contracts is most suitable for a particular project.

Adjudication review
Review of adjudication cases in 2016
Lawrence Davies and Danielle Griffiths of Pinsent Masons review some of the key adjudication related cases from 2016 and the impact they will have on practitioners. Hot topics included extending adjudication to settlements, serial adjudication and curtailment of ‘smash and grab’ actions.

Scotland review
2016 – bonds and warranties featured in Scotland
Shona Frame and Frances Garratt of CMS review the year in Scotland. A number of significant legal and legislative developments included court decisions affecting performance bonds and collateral warranties, and legislative support was given to project bank accounts.

Contracts
Knock for knock in offshore construction contracts
Katherine Doran of Holman Fenwick Willan LLP cuts through the complexity of how ‘knock for knock’ provisions work in offshore construction contracts, giving a breakdown of a typical clause to show how the various elements fit together.

Concurrent delay
Concurrent delay outlook uncertain
Aidan Steensma, Of Counsel at CMS, examines the implications for approaches to concurrent delay of a recent decision made in the Commercial Court. There is still no sign of agreement between construction specialists about which approach to favour.

Insurance
Risk management for architects and engineers
Management of risk cannot be ignored just because an insurance policy is in place, warns insurance expert John D Wright of JD Risk Associates, in this guide to how to approach proper risk management.

Alternative dispute resolution
Solvency doubts no reason for a stay
In our latest alternative dispute resolution series article Jamie Calvie of Clyde & Co analyses a recent decision where a contractor’s worries about a client’s ability to meet its final account obligations proved to be no justification for staying an adjudication award.

Construction Law: December 2016

Editor’s comment    
Arbitration market share under threat
Editor Nick Barrett examines moves to help secure London’s place as a leading international arbitration centre. Will they be enough?

News
Our regular news round up reports on new arbitration rules from the ICC; a new standard designed to combat bribery; and an attack on open tenders for unsustainably escalating bidding costs.

Legal terms explained
Rebecca Boyle of Pinsent Masons explains the meaning of betterment.

Guest editor
Is Lulu something to ‘Shout’ about?
Guest editor Anthony Willis of DLA Piper foresees revived attention being given to the apparent conflict between late payments legislation and the Construction Act following a recent TCC case.

Legislation state of play table
Our regular update on the progress of legislation affecting construction as it passes through the UK and EU legislative systems comes from Clyde & Co LLP. Richard Kniveton and Andrew Primett provide a commentary on the National Infrastructure Commission becoming an Executive Agency.

Reports from the courts
Our regular reports of the court cases of most interest to construction from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP, including a case involving the NEC3 sub-contract and a breach of natural justice; and one that again highlights that an adjudicator’s decision can be upheld regardless of errors of fact or law.

Contracts monitor
Don’t trip over your footnotes 
Contracts monitor Michael Phipps, Principal of Thurston Consultants, begins his scrutiny of the new version of the JCT Minor Works Building Contract. Much useful detail is revealed in footnotes, so be careful not to miss them, he urges.

Litigation
No get out of jail free card
Concurrent delay issues seldom arise but cause complex debate when they do. Michael Sharp and Emma Kurtovich of Herbert Smith Freehills analyse a recent case showing the importance of establishing causation.

Expert witnesses
Expert evidence and construction claims
Digby Hebbard and Douglas Simpson of Fladgate LLP take an overview of the role of expert witnesses in construction disputes, providing practical advice on their selection and management. Neglect of either of these could be costly.

Payments
Court clamps down on ‘smash and grab’
Akin Akinbode and Krystal Williams of Dentons discuss key cases that provide lessons in respect of the payment process. Smash and grab approaches will not always work, they warn.

Adjudication
Oral contracts and oral variations
Oral contracts, part-oral contracts and variations can throw up difficult issues for adjudicators, raising the prospect of jurisdictional challenge when the existence of a contract is disputed. Frances Garratt of CMS explains the lessons to be learned from recent cases.

Insurance
Risks of occurrence in liability insurance   
Insurance expert John D Wright of JD Risk Associates examines potential pitfalls from using words in policies that can have alternative meanings. Even the meaning of a word like ‘occurrence’ can be disputed.

Contracts
Whose plant is it anyway?  
Inconsistent provisions in contracts frequently bedevil the question of who owns goods like construction plant on site. Catherine Piercy and Aileen McErlean of Hardwicke Chambers urge close attention along the supply chain to who actually has title.

Alternative dispute resolution
Adjudicating a final account    
Our latest alternative dispute resolution series article from Chris Leadbetter of Clyde & Co examines an important court ruling affecting adjudication.

Construction Law: November 2016

Editor’s comment    
Shining light on arbitration
Editor Nick Barrett reports on calls for more appeals against arbitration awards to be allowed, and a good example of a decision from an appeal that is being hailed as a landmark.

News    
Our regular news round up focusses on calls to reform ‘burdensome’ procurement processes; a KPI survey showing some positive results for client satisfaction; and a report calling for construction to modernise itself.

Legal terms explained  
Eleanor Mountain of Pinsent Masons explains how head office overheads and loss of profit are viewed when projects overrun.

Guest editor
Restoring arbitration for the 21st Century
Guest editor Martin Burns, Head of ADR Research and Development at RICS, sees a renewed appetite for arbitration, as a middle ground between long drawn out litigation and high speed adjudication. An improved version of what went before won’t be enough to cope with modern demands so new ground must be broken, he argues.

Legislation state of play table 
Clyde & Co LLP present our regular update on the progress of legislation affecting construction as it passes through the UK and EU legislative systems. Nathaniel Horrocks-Burns and Tim Saxon provide a commentary on the Construction Leadership Council’s Construction Supply Chain Payment Charter.

Reports from the courts     
Our regular reports of the court cases of most interest to construction from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP focuses on a decision highlighting that reservations about an expert’s jurisdiction must be raised at the outset of any dispute; and another highlighting that exclusions to agreements for extensions of time should be expressly set out.

Contracts monitor
Definitions list needed           
Contracts monitor Michael Phipps, Principal of Thurston Consultants, highlights inconsistent use of terminology in RIBA’s Concise Building Contract 2014. Time may be wasted checking for this, he warns.

Legislation
Beware Brexit unknown unknowns   
Ed Freeman of Clyde & Co looks at the implications of Brexit for construction law, of which several are important for the industry’s contracts. Amid the current uncertainty parties need to ask who will shoulder the risk of the unknown unknowns?

Adjudication
‘Smash and grab’ adjudications
David Arnott and Christopher Duff of Brodies LLP analyse the game-changing impact of Construction Act amendments on adjudication, detailing the options available to paying parties on the losing side of ‘smash and grab’ actions.

Design
Contractors’ design obligations
Jennifer Jones of Atkin Chambers examines a recent case affecting contractors’ design obligations that highlights tension between implied obligations and the conventional approach which looks purely at express design obligations contained within the contract.

Digital construction
Digital delivery – the legal implications
Digitising construction will demand a joined up legal, commercial and technical approach, say Andrew Croft and Adam Ifield of Beale & Company Solicitors LLP in this overview of the legal implications of new, digital ways of working. Responsibilities and roles are likely to change quickly, they warn.

Contracts
Anti-oral variation clauses
Vijay Bange of Trowers & Hamlins analyses the issues in a non-construction case that has implications for anti-oral variation clauses in construction contracts. There are practical benefits to be had from including these clauses in contracts, he concludes.

Insurance
Watch the finger on trigger points  
Insurance expert John D Wright of JD Risk Associates examines the proximate cause principle as it applies to construction industry policies. Precise wordings in policies can be important, he cautions.

Alternative dispute resolution
Claiming costs in adjudication
Our latest alternative dispute resolution series article from Rupert Coldwell of Clyde & Co LLP reports on a case with key implications relating to payment of interest and costs in adjudication. The decision confirms that an adjudicator’s jurisdiction will extend to the award of any relief which is consequential upon or incidental to the adjudication.

Construction Law: October 2016

Editor’s comment    
Survey reveals procurement gulf
Editor Nick Barrett says Brexit might open an opportunity for worthwhile changes to infrastructure procurement rules, but a survey has revealed the large gulf between what procurement professionals on the client side would like to see and what construction suppliers will find beneficial.

News                  
Our regular news round up includes the launch of a long delayed government consultancy framework; a survey that claims construction is especially vulnerable to slavery; and another survey that reveals a need for greater transparency of the public sector project pipeline.

Legal terms explained
Alistair Price of Pinsent Masons explains good faith.

Guest editor
Contracts can support BIM 
Our Guest Editor Professor David Mosey, Director of the Centre of Construction Law and Dispute Resolution at King’s College London, reviews the legal issues surrounding Building Information Modelling. Recent research points the way towards contracts and procurement that can help achieve BIM Level 3 ambitions, he argues.

Legislation state of play table 
Clyde & Co review the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Chris Kerr provides a commentary on planning for nationally significant infrastructure projects.

Reports from the courts 
Our latest round up of the court cases of most interest to construction from Andrew Croft and Natalie Ledger of Beale & Company Solicitors LLP focuses on a decision highlighting that the natural meaning of the words used will be the primary consideration in the interpretation of construction contracts; and another underlining the importance of agreeing and documenting contract variations.

Contracts monitor
Watch out for paper tiger 
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of RIBA’s Concise Building Contract 2014. More careful wording could make it easier to use in places, he argues.

Design information
Design information – a modest proposal
Marion Rich, Director of Legal and Contractual Affairs of the British Constructional Steelwork Association, sees a steady and rapidly growing stream of problems arising from design information shortcomings. Rather than pursuing new initiatives, focus on making existing ones work, she argues.

Contracts
Fee and overhead under NEC3
Laura Tetlow of Pinsent Masons LLP looks at the perceived lack of understanding of what ‘fee percentages’ in NEC3 Engineering and Construction Contracts (NEC3 ECC) are intended to include, highlighting some common pricing conundrums.

Digital construction
Legal implications for BIM Level 3
A fundamental rethink about contractual arrangements will be needed to realise the government’s ambitions for Digital Build Britain, says Shona Frame of CMS. BIM Level 3 will throw up new challenges that will need to be met with appropriate contractual solutions.

Payments
Payment schedules – simple or stitch-up?
Contractors were stunned by a recent court decision that seems to undermine the use of payment schedules as a means of simplifying complicated payment regimes. Vijay Bange of Trowers & Hamlins explains the background and predicts repercussions.

Overseas
Setting up shop in Qatar
Football’s World Cup will be held in Qatar in 2022, creating even more opportunities for construction companies from the UK. Andrew Jones of Dentons reviews the legal and commercial hurdles to be overcome.

Insurance
Subrogation rights – simple in theory complex in practice
Insurance expert John D Wright of JD Risk Associates examines the case law relating to how subrogation impacts on claims under policies. Subrogation rights can be lost because of contractual terms, he warns.

Alternative dispute resolution
Brexit brings unwelcome uncertainty 
Our latest alternative dispute resolution series article by Russell Banfi and Tim Axtmann of Clyde & Co warn that uncertainties surrounding Brexit may contribute to damaging London’s status as an arbitration centre.