Construction Law – December 2021

Editor’s comment
Construction called to perform on net-zero plans
Construction will be central to plans to achieve net-zero carbon by 2050, and the industry is poised to respond, says Editor Nick Barrett, who warns that construction contracts are expected to contain decarbonisation clauses in future.

News
This month’s news roundup features details of a landmark net zero roadmap for construction published at COP26, response to government pledges on unsafe cladding and an update on a dispute over problems with Glasgow’s Queen Elizabeth Hospital.

Legal terms explained
Lucinda Hill and Sienna Kim of Herbert Smith Freehills LLP explain contractual time bars.

Guest editor
The Glasgow Climate Pact – What can the construction industry contribute?
Guest Editors Shona Frame and Emma Schaafsma of CMS ask what contribution construction can make to combatting climate change following the signing of the Glasgow Climate Pact at COP26. Major changes will be needed, along with a lot of innovation and investment, and contractual mechanisms to force contractors to seek greener suppliers can be expected.

Legislation state of play table
Our regular update on the progress of legislation affecting construction as it passes through the legislative process, compiled by Construction Law staff, with a Commentary by News Editor Steve Dale.

Reports from the courts
Our regular round up of court decisions of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine a case showing the importance of giving notice effectively when disputing a final statement; and an appeal court ruling confirming that enforcement of an adjudication decision by an insolvent claimant is possible, albeit in limited circumstances.

Book Review
Construction Disputes – Seeking Sensible Solutions
Middle East based mediator and arbitrator Mark Fraser of Fraser & Co reviews Construction Disputes – Seeking Sensible Solutions by Wayne Clark, which he says is recommended reading for anyone involved in construction and engineering.

CL guides
Procurement routes
In our latest Guide to Construction Law series article Peter Lowe of DLA Piper summarises the conventional construction procurement routes in the UK.

Insolvency
A game of chess – insolvency vs. adjudication
Theresa Mohammed and Laura Lintott of Trowers & Hamlins LLP analyse the possible clash between the insolvency and statutory adjudication regimes where a party to a dispute faces insolvency. Case law provides clarity on the right to adjudicate, but practical problems might remain.

FIDIC
The Engineer, aka FIDIC Kingpin
In the second article of our series on FIDIC contracts David Brown and Barnaby Sandy of Clyde & Co examine the role of the Engineer. The Engineer’s role is changing but it can still have a ‘piggy in the middle’ feel about it.

Fluctuations
Super-inflation and the construction and energy sector in the UK
Karen Gough of 39 Essex Chambers analyses a seldom reported fact about adjudication, that despite it being established that an adjudicator can only deal with a single dispute in an adjudication, satellite disputes and jurisdictional challenges continually arise around the issue.

Collaboration
The elastic band of contractual flexibility and Covid-19
Alexander Slade of Vinson & Elkins asks whether the flexibility and collaboration that has been displayed by parties to contracts during the Covid-19 pandemic heralds a new dawn for industry relationships; or will things snap back under the pressure, leading to an increase in disputes?

Insurance
Statutes of Limitation – Still Adapting
Our insurance expert John D Wright of JD Risk Associates examines the impact of statutes of limitation on construction insurance. Post Grenfell, a Building Safety Bill will extend the long stop time limit from six years to fifteen years in respect of defects in buildings which render them unfit for habitation under the Defective Premises Act 1972 and introduce retrospective liability.

Alternative dispute resolution
Mainstreaming ADR: feedback and ideas
In our latest Alternative Dispute Resolution series article Tracey Summerell and Akin Akinbode of Dentons describe their team’s response to the Ministry of Justice call for evidence on dispute resolution.

Construction Law: November 2021

Editor’s comment
Combatting climate change could also boost procurement skills
Construction procurement will be in the front line of government’s drive towards decarbonisation. Editor Nick Barrett says promises of training for procurement professionals to support net zero carbon ambitions is something to be welcomed.

News
This month’s news roundup covers concerns over supply chain distress and delayed projects, despite an exceptionally low number of profit warnings being recorded in the sector. Also featured are details of updated guidance for managing Covid impacts within contracts and a call to speed up reforms set out in the Construction Playbook.

Legal terms explained
Lucinda Hill and Rahul Prakash of Herbert Smith Freehills LLP explain what negligence means.

Guest editor
Another nail in the coffin for challenges to liquidated damages
Guest Editors Peter O’Brien and Thomas Wheeler of Clyde & Co say recent court decisions show reluctance to look behind what parties have agreed to find a liquidated damages clause unenforceable. Applying the same principles in some scenarios could lead to double recovery of losses by Employers, they warn.

Legislation state of play table
Our regular update on the progress of legislation as it passes through the legislative process comes from Dentons UK & Middle East LLP. Tracey Summerell and Akin Akinbode comments on the UK’s net- zero carbon strategy.

Reports from the courts
Our latest round up of court cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP. One judgment reinforces the view that the courts will support ‘the natural and ordinary meaning of the words used’ in commercial agreements; and in a Scottish case the judgment warns against ‘contrived or technical defences’ which the courts will ‘examine with a degree of scepticism’.

Analysis
Strategic focus could prevent race to the bottom on costs, say MPs
With publication of the government’s Comprehensive Spending Review, construction is pinning a lot of hopes for future workloads on government promises about ‘levelling up’ left behind parts of the UK, which is to be at least partly addressed by significant infrastructure investment. Details are only starting to come through but doubts have been raised by MPs that the government even knows what levelling up means, Nick Barrett reports.

CL guides
Defects provisions in constructions contracts
In our latest guides to construction law series article Tom Manley of DLA Piper looks at defects provisions in contracts.

Contracts
Choice of English law for international construction contracts
Mark Macaulay and Gurbinder Grewal of Dentons Middle East and UK LLP consider why English law is a popular choice for construction contracts internationally. Cultural reasons contribute to the high reputation of UK law for doing business under.

Contracts
Supreme Court Triple Point ruling prompts NEC4 amendments
Tom Howell of Beale & Company LLP examines the potential impact on NEC contracts of a Supreme Court ruling that reversed an Appeal Court decision. Case law now supports the ‘orthodox’ approach to the application of liquidated damages prior to contract termination.

Adjudication
Adjudication: Just one [dispute] at a time please!
Karen Gough of 39 Essex Chambers analyses a seldom reported fact about adjudication, that despite it being established that an adjudicator can only deal with a single dispute in an adjudication, satellite disputes and jurisdictional challenges continually arise around the issue.

Mediation
Constructing an Agreement – Mediation in the Construction Industry.
Chris Bryden and Georgia Whiting of 4 King’s Bench Walk lament the industry’s reluctance to adopt mediation more enthusiastically than it has. There is much to gain, and little to lose, by using mediation to resolve disputes, they argue.

Insurance
The ins and outs of subrogation
Insurance expert John D Wright of JD Risk Associates analyses the common law principle of subrogation which is intended to ensure that parties responsible for losses are held accountable. The idea is simple, but complex issues can arise, he warns.

Alternative dispute resolution
Courtesy paves the way for compromise – and wellbeing
Tracey Summerell of Dentons UK & Middle East LLP argues that alternative dispute resolution is more likely to produce a process that promotes positive mental health as well as satisfactory business outcomes.

Construction Law: October 2021

Editor’s comment
Construction pipeline promises much
Plans to invest £650 billion on new infrastructure over the next decade have been welcomed by the industry, but can the government deliver on the reforms affecting supply chain collaboration, fair allocation of risk and an end to ‘boom and bust’ investment cycles that successful delivery will demand, asks Editor Nick Barrett.

News
This month’s news roundup features the views of lawyers on challenges facing the government’s latest Construction & Infrastructure Pipeline. Also detailed are a report warning that commercial pressures have clashed with Covid safety on some sites and a new verification scheme for construction products.

Legal terms explained
Mike Reynolds of Herbert Smith Freehills LLP explains statutory adjudication.

Guest editor
Grasping the nettle
Guest Editor Karen Gough of 39 Essex Chambers sees a victory for ‘the little man’ in a case in which she represented the successful claimant in enforcement proceedings.

Legislation state of play table
The latest in our regular update on the progress of legislation and regulations affecting construction comes from Dentons UK & Middle East LLP. Tracey Summerell provides a commentary on the Future Homes Delivery Plan.

Reports from the courts
Our regular analysis of the court cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who look at one case that involved a post-Grenfell claim for fire safety defects in a building; and another that clarifies the extent to which liquidated damages are recoverable upon termination of a contract before completion of the works.

Book Review
Wilmot-Smith on Construction Contracts 4th edition
Hamish Lal of Akin Gump Strauss Hauer & Feld reviews a new edition of Wilmot-Smith on Construction Contracts that he says makes it one of the leading practitioner textbooks, as well as a key resource for trainees, pupils and beginners.

CL guides
Adjudication
In the latest Construction Guides series from DLA Piper, Jenny Harrison describes how adjudication works as a speedy dispute resolution process. Although a success, adjudication has become a sometimes quasi mini-arbitration dealing with complex, time-consuming construction issues.

Contracts
Golden Principles protect contract integrity
In the first of a series of articles on FIDIC’s contracts Mary Anne Roff and Jennifer Davis of Clyde & Co provides an overview of these key contracts for international construction..

Liquidated damages
Orthodoxy Restored: The Supreme Court Decision in Triple Point
Lucinda Hill and James Doe of HSF analyse the Supreme Court decision that overturned a Court of Appeal ruling based on an erroneous interpretation of the case law on liquidated damages. The ruling will be a relief to the construction industry, they conclude.

Adjudication
Quarter of a century of construction adjudication
Construction is still the only industry that has had specific legislation passed to govern its contracts, although statutory adjudication has now been with us for 25 years. Theresa Mohammed and Laura Lintott of Trowers & Hamlins LLP review its development, reminding us why it was thought necessary to usher in this ‘revolution’ in handling disputes.

Retrospective liability
Retrospective liability claims: what you need to know
Barry Hembling and Hazel Boland-Shanahan of Watson, Farley & Williams LLP analyse proposed changes to building safety legislation ushered in by the Grenfell tragedy which will apply retrospectively, and could allow claims on disputes where the limitation period had expired.

Insurance
HS2 and Tunnelling Risks
Insurance expert John D Wright of JD Risk Associates reviews the extensive range of risk factors that need to be insured on large projects, focussing on the HS2 tunnelling works. An element of self insurance will be shouldered by some parties to the project.

Alternative dispute resolution
Let’s ditch the “A” in ADR
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East says dispute resolution could be on the verge of radical change.

Construction Law: August/September 2021

Editor’s comment
Report highlights need for procurement overview
Editor Nick Barrett says the Latest National Audit Office report highlights yet again the need for procurement reform. Lessons may have been learned from the Carillion collapse.

News
This month’s news roundup features a warning that material shortages and cost pressures are set to result in a rise in construction disputes. In addition, lawyers respond to the new Building Safety Bill and the Civil Justice Council has declared that compulsory alternative dispute resolution is lawful.

Legal terms explained
Noe Minamikata and Michael Sharp of Herbert Smith Freehills LLP explain what is meant by novation.

Guest editor
The role of export credit agency financing
Guest editors Lauren Davies, Counsel, and Vanessa McLellan of Vinson & Elkins RLLP argue that export credit should not be overlooked as a source of funding or support for large projects.

Legislation state of play table
The latest in our regular update on the progress of legislation and regulations affecting construction comes from Dentons UK & Middle East LLP. Tracey Summerell and Akin Akinbode provide a commentary on the Building Safety Bill.

Reports from the courts
Our regular round up of the court cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine a decision where the judge criticised claimants for not using adjudication; and another that highlights the dangers of oral contracts.

Analysis
In-person and virtual evidentiary hearings: are hybrid hearings the way forward?
Virtual hearings have proven that they can work during a pandemic but are they here to stay? Scott Stiegler and Ben Grunberger-Kirsh of Vinson & Elkins argue that hybrid models combining in-person and virtual evidence might become the norm.

CL guides
Price and payment
The latest in our Guides to Construction Law from DLA Piper whose Clare Rushton explains the often thorny issues of price and payment in contracts.

Legislation
Retrospective liability claims: what you need to know and where to start
Barry Hembling and Hazel Boland-Shanahan of Watson, Farley & Williams LLP analyse proposed changes to building safety legislation ushered in by the Grenfell tragedy which will apply retrospectively, and could allow claims on disputes where the limitation period had expired.

Procurement
Promoting ethical purchasing decisions
Construction is at the forefront of a procurement revolution that will enforce proper attention being given to the ethical sourcing of materials and services. Mark Fletcher of Russell-Cooke LLP warns that the ability of employers to enforce their values is still constrained by legal and commercial considerations.

Disputes
The root cause of evil
Vijay K. Bange and Tanya Chadha of Duane Morris explore trends in disputes emerging in the energy sector across four jurisdictions – the United Kingdom, Middle East, United States and Caribbean and Latin America.

Economic loss
Why economic loss is an issue in claims
Jane Hughes of Trowers & Hamlin LLP examines the often difficult to explain issues surrounding the concept of economic loss. Sustained pressure on the legal principles behind it is expected, she warns.

Insurance
Disclosure, waiver and the Insurance Act 2015
Insurance expert John D Wright of JD Risk Associates asks what difference has been made by changes in the Insurance Act 2015 to the principle of ‘good faith’ as it applies to policies. Bias towards insurers might have been removed but legal disputes still arise, he cautions.

Alternative dispute resolution
New Digital Dispute Resolution Rules
In our latest Alternative Dispute Resolution series article Tracey Summerell of Dentons UK and Middle East LLP says ‘new tech’ like smart contracting is developing rapidly and is set to disrupt the industry’s approach to both contracting and dispute resolution.

Construction Law: July 2021

Editor’s comment
Contracts need risk management
A survey from Arcadis shows that poor understanding and use of contracts is the major cause of disputes. Editor Nick Barrett says old attitudes to understanding what contracts mean and how to use them as management tools represent poor risk management.

News
This month’s news roundup features a report showing that the average value of construction disputes rose to its highest level ever last year; a warning that an increase in insolvencies could be on the horizon due to tender price inflation; and details of the Technology & Construction Court’s annual report.

Legal terms explained
Rahul Prakash of Herbert Smith Freehills LLP explains how limitation periods function.

Guest editor
Cladding- papering over the cracks?
Barristers Chris Bryden and Georgia Whiting of 4 King’s Bench Walk use the Guest Editor slot to analyse some of the who-pays for remedial cladding post-Grenfell questions that are still unanswered. Two recent court decisions of relevance to professionals faced with the cladding conundrum are worth considering, they argue.

Legislation state of play table
The latest in our regular update on the progress of regulations and legislation affecting construction comes from Steve Dale of Barrett Byrd Associates. Adam Brown of Dentons provides a commentary on the Group of Seven and Net Zero.

Reports from the courts
In the latest of our Reports from the Courts series of articles Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP examine a case reminding parties to ensure strict compliance with contractual notice provisions, and be wary of ‘final and binding’ clauses; and another judgment that is a clear reminder of the uncertainty that can arise when works commence prior to the execution of a formal contract and the risks of letters of intent.

Analysis
Digital Technology in Construction: An Opportunity for Change
Risk experts on insurance and construction respectively, Graham De Roy and Stephen Woodward consider how digital working offers opportunities to correct the loss of appetite by the insurance industry for insuring construction industry risk.

CL guides
Time in construction contracts
The latest of our guides to construction law series comes from Rachel Chaplin of DLA Piper who explains the role of time in construction contracts.

Witness statements
New rules on witness statements
Judges had become unhappy with witness statements, particularly because of extensive referencing of documents, mixing facts with arguments and lack of use of witness’ own words, so have instituted reforms, as Theresa Mohammed, Laura Lintott and Megan Hulme of Trowers & Hamlins LLP explain.

Good faith
Good Faith, Mutual Trust and Cooperation – Oh My!
Good faith type arguments have been coming to the fore in disputes over the past five years, as Katherine Doran of HFW LLP highlights as she reviews case law to find guidance on how the courts might interpret mutual trust and cooperation obligations in NEC contracts.

Adjudication
Too late to join the DAB party?
Barrister Karen Gough of 39 Essex Chambers, also a Chartered Arbitrator and accredited Adjudicator, asks whether the JCT has found a winner with its hybrid DAB/Adjudicator dispute avoidance and statutory adjudication offering. There are risks in the JCT DAB structure that will need to be assessed when tested in the Courts, she warns.

Insurance
Product liability insurance
Insurance expert John D Wright of JD Risk Associates examines product liability insurance, which has come under the spotlight following the Grenfell tragedy. Higher insurance costs and restricted cover from policies are to be expected, he warns.

What cover do lenders want from a borrower developer?
Anne Wright of Lawrence Stephens takes a look at the background to the current problems with the insurance market, explaining the main types of insurance in use in the industry and what lenders will demand from borrower developers.

Alternative dispute resolution
How can the solicitor assist in safeguarding expert evidence?
Michael Wright and Millie Leonard of Dentons UK & Middle East LLP analyse a case that highlights the role of solicitors in the proper handling of expert evidence in our latest alternative dispute resolution series article.

Construction Law: June 2021

Editor’s comment
Toxic and dysfunctional industry awaits its revolution
Editor Nick Barrett says tinkering with payment practices won’t be enough of a solution to the industry’s problems when even the Times in a three day series of articles suggests that the industry is ripe for revolution. It’s long overdue, he says.

News
This month’s news roundup features a warning that expected price inflation in construction could lead to harder fought claims, details of proposed new powers for the Insolvency Service to help tackle ‘phoenixing’, and the results of a major survey on international arbitration.

Legal terms explained
Michael Sharp and Noe Minamikata of Herbert Smith Freehills LLP explain the Construction Act.

Guest editor
A Smart Risk Register – a tool for non-adversarial behaviour
Guest Editor’s project team consultant Kelachi Amadi-Echendu and barrister Professor Rudi Klein consider how, through creating transparency and behaviour focused on aligned project outcomes, a Smart Risk Register supports the government’s Build Back Better plan.

Legislation state of play table
Dentons UK and Middle East provide our regular update on developments in regulations and legislation as they affect construction. Tracey Summerell comments on mounting pressures on the industry to reduce emissions.

Reports from the courts
Our regular round up of court cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP features one that highlights the need to ensure a project’s supply chain has appropriate insurance; and a judgment that provides comfort to those relying on limits of liability and exclusion clauses that the courts will take a common-sense approach.

Analysis
Unexploded bombs – who pays?
Jane Hughes and Robert Scudamore of Stevens & Bolton LLP try to fill an information gap on who should be liable for damage caused by unexploded Second World War bombs? Those still buried in the ground are deteriorating all the time.

CL guides
Letters of intent
The latest in our construction guides series from DLA Piper by Jennifer Price-Thomas looks at Letters of Intent, which she warns can carry pitfalls for the unwary.

Design obligations
Warranted trends in design standards
Harith Canna of Herbert Smith Freehills considers significant recent developments concerning design-related obligations, which lie at the core of any construction contract, and their impact on the procurement of construction projects.

Duty of care
Developments in the law of negligence and third-party liability
Claims involving duty of care when damage is caused by a third party are at the fore of developments in the law of negligence, as Barry Hembling of Watson, Farley & Williams LLP reports in this analysis of recent court cases.

Sustainability
Green dispute resolution procedures – what they are and how to use them
In a previous article (Construction Law Vol 32 No 2) Jane Hughes of Stevens & Bolton LLP looked at incorporating green drafting into construction contracts. In this follow up she considers how disputes can be dealt with in a greener, more sustainable way.

Tort of nuisance
The Tort of Nuisance – Overlook It At Your Peril
Chris Bryden and Georgia Whiting of 4 King’s Bench Walk examine the tort of private nuisance, a complex area which they warn has the potential to affect construction professionals in far-reaching (and evolving) ways.

Insurance
Hard times for professional indemnity
Insurance expert John D Wright of JD Risk Associates examines the current crisis in the professional indemnity market, which he predicted some two years ago. Policyholders can however take steps to help secure cover at an affordable cost.

Alternative dispute resolution
Arbitration exhibiting ‘due process paranoia’
Our regular Alternative Dispute Resolution article comes from Tracey Summerell of Dentons UK and Middle East who asks whether it is time for arbitration to lighten up.

Construction Law – May 2021

Editor’s comment
Derailment inquiry exposes risk management shortfalls
Investigations continue into last year’s Carmont railway derailment but Editor Nick Barrett says there are already clear signs from an interim report that a head in the sand approach to risk management and maintenance regimes were at least part of the problem.

News 
Our regular news roundup this month includes a warning that efforts to decarbonise construction are being held back by outdated procurement practices. Meanwhile difficulty obtaining PI insurance post-Grenfell is threatening firms’ ability to take on work, and a simplified new pre-qualification system promises to save the sector £1Bn a year.

Legal terms explained
Alice Pickthall and Michael Sharp of Herbert Smith Freehills LLP explain what is meant by Bonds and Guarantees.

Guest editor
The future of international construction arbitration
Guest Editor Ben Mellors of HFW asks if it is time to explore whether users of international construction arbitration might benefit from specific rules or guidance to supplement the more general arbitration landscape? A brand new set of international construction arbitration rules would be one solution, but a new set of protocols might suffice, he suggests.

Legislation state of play table
Dentons UK and Middle East provide our regular update on the progress of regulations and legislation affecting construction. Tracey Summerell provides a commentary on mounting pressures to cut carbon emissions.

Reports from the courts
Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP review the latest court cases of most interest to construction, including one highlighting that where appropriate, the courts will enforce adjudication decisions notwithstanding an exclusive jurisdiction clause; and a Scottish court decision which while not binding in England provides a reminder that the courts will give effect to the widely-used NEC3 dispute resolution provisions.

Analysis
Insurance claims disputes likely to rise
Bruce Hepburn, Chief Executive Officer of insurance specialists Mactavish, explains recent turmoil in the increasingly complex insurance market. Getting proper advice when insurers themselves are sometimes not quite sure what their policies cover is essential, he warns.

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

Reform
The adverse effect of normalisation of deviance in construction organisations
Dr Sara Hajikazemi, senior lecturer in project management at London South Bank Business School discusses how early warning systems can contribute to preventing normalisation of deviance in construction organisations, which can gradually bring them to a point where failure is inevitable.

Arbitration
Arbitration, but not as we know it!
Vijay Bange of Duane Morris looks at a recent court ruling on arbitration that shows that in order to make a binding agreement to submit to arbitration under the Arbitration Act, there must be a process that ends up with a binding decision. If not, the Arbitration Act will not apply.

Risk management
Building Back Better – A Digital Response
Smart Risk Registers can support high quality project delivery in line with the government’s Build Back Better plan, argue project team consultant Kelachi Amadi-Echendu, management consultant Graham Robinson, supply chain barrister Professor Rudi Klein, construction risk management consultant Stephen Woodward and South African-based organisational behaviour specialist Anton Krause.

Technology
Construction disputes – can technology make record keeping better?
Amy Roberts and Jane Fender-Allison of CMS Cameron McKenna Nabarro Olswang LLP explain how adopting the latest technology can help avoid and resolve disputes. Recent court cases illustrate the point.

Insurance
Insurers feel the heat
Insurance expert John D Wright of JD Risk Associates explains the measures insurance companies are taking in policies to control their exposure to fire damage claims arising on ‘hot work’ projects. The use of conditions precedent to liability is growing since the Insurance Act 2015.

Alternative dispute resolution
Is the industry using adjudication as Parliament intended?
In our latest alternative dispute resolution series article Sarah Alexander of Dentons UK and Middle East questions whether adjudication is being used as Parliament intended.

Construction Law, April 2021

Editor’s comment
A bank that doesn’t go far enough?
Editor Nick Barrett says the new Infrastructure Investment Bank won’t fund much of the UK’s infrastructure but deserves a chance to prove it can catalyse private sector investments.

News 
This month’s news roundup features a warning from the Public Accounts Committee that taxpayer money risks being wasted as PFI contracts expire, an industry plan to reduce self-employment on construction sites through procurement, and details of a court ruling which saw Bechtel fail in its challenge to a High Speed 2 contract award.

Legal terms explained
Noe Minamikata and Adya Garg of Herbert Smith Freehills LLP on the draft Building Safety Bill.

Guest editor
Alliance contracting: an Australian perspective
Guest Editors Wayne Harrison and Ed Shaw of DLA Piper suggest that it is time the UK turned away from traditional forms of contracting towards alliance contracting, which is proving itself in Australia.

Legislation state of play table
Dentons UK and Middle East LLP provide our regular update on the progress of legislation affecting construction. Tracey Summerell and Mark Macaulay comment on the Law Commission’s consultation on smart contracts.

Reports from the courts
Our regular round up of the key court decisions affecting construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP. In one case the court overturned an application for summary judgment seeking enforcement of an adjudicators decision; in another the court dismissed a council’s challenge to an enforcement.

Analysis
Private finance handbacks threaten disputes
Parliament’s public spending watchdog the Public Accounts Committee has made another attack on the Private Finance Initiative, this time warning that sloppy handing back of the £60 billion of assets created under it could cost the taxpayer even more wasted money. Disputes seem almost certain, Nick Barrett reports.

CL guides
NEC4 (Part 1)
Corinne McCarthy of DLA Piper explains the NEC4 suite of contracts in our latest CL Guide series article. Part 2 follows next month.

Adjudication
Just wait a minute!

Barrister Karen Gough, of 39 Essex Chambers, explains how attempted smash and grab tactics can backfire in adjudications, with reference to a case where she acted for one of the parties. The case also shows the risks of serving adjudication notices by email.

Procurement
Price evaluation models for construction procurement
In this article based on a recent ‘White Paper’, Rebecca Rees and Stuart Brown of Trowers & Hamlins argue that it is essential that the industry finds alternatives to lowest price bidding and suggest other price evaluation models that could be trialled. Collaboration could also be enhanced by a changed emphasis at the procurement stage.

Contracts
Contractual Discretions and their exercise
Good faith is not recognised as a contractual term in English law but in an increasing number of judicial determinations a duty of good faith will be applied by way of exception. Cecily Davis of Fieldfisher examines relevant case law.

Technology
Re-purposing green assets for hydrogen production
Eran Chvika and Dominique Nkoyok of Pinsent Masons LLP’s Paris Office review the opportunities for energy and infrastructure companies to focus on the production of ‘green’ hydrogen. Contractors should expect to take on most of the risks under contracts, they warn, and strict contractual obligations on safety and security and on the interface of works carried out by others are likely to flow from tight regulations and conditions imposed by financiers.

Insurance
Green light for Covid claims?
Our insurance expert John D Wright of JD Risk Associates examines the implications for insurance of a Supreme Court judgment relating to business interruption cover. Not all policyholders will be pleased by the outcome once they appreciate the implications, he warns.

Alternative dispute resolution
Don’t log off: the path to positive online mediation
In our latest Alternative Dispute Resolution article Linzi Hedalen of Dentons UK and Middle East LLP set out key benefits of virtual mediation and helpful tips for those engaging in the process.

Construction Law: March 2021

Editor’s comment
Insurance problems threaten the UK’s future
The ‘golden age’ of low insurance premiums is over and the outlook is for still higher prices, for those who can get cover. Editor Nick Barrett says the issue is becoming a crisis that could block government plans to ‘build, build, build’ the UK into a brighter post Covid future.

News
This month’s news roundup includes a warning that confusion remains over liability for Covid-19 related delays and cost increases on many construction projects. However the sector is still less adversarial than initially feared at the start of the pandemic. Meanwhile, a major review of public construction frameworks is set to be carried out by a leading construction law specialist.

Legal terms explained
Harith Canna of Herbert Smith Freehills LLP explains the relevance of the Defective Premises Act 1972 to construction.

Guest editor
Emotional disputes in the age of Zoom
Virtual mediations have become commonplace and an industry has quickly learned how to master the technology required, but are they a poor substitute for face-to-face conversations? Guest Editor Bill Barton of Barton Legal argues that virtual approaches are serving the process of mediation well.

Legislation state of play table
Dentons UK and Middle East LLP provide our regular update on the progress of legislation affecting construction. David McGowan and Jennifer Robinson provide a commentary on the public procurement Green Paper.

Reports from the courts
Our regular review of the most significant cases to come before the courts, from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, examines a dispute that provides a reminder of the importance of agreeing and complying with clear and unambiguous payment terms; and another that underlines the importance of clear contractual drafting setting out the basis of the price and the payment regime.

Analysis
Playbook signals greater scrutiny to combat suicide bidding
News Editor Steve Dale reports from a webinar that examined the new Construction Playbook, highlighting the dangers in a predicted wave of ‘suicide bidding’. Analysis of the likely impacts led participants to warn of increased dangers of disputes.

CL guides
JCT Contracts
In the latest instalment of our CL Guides series from DLA Piper Rachel Chaplin examines JCT contracts, the most comprehensive suite of building contracts.

Grenfell
The cladding challenge: Silent killer!
Vijay Bange and Tanya Chadha of Duane Morris review the post Grenfell impact on residential buildings that are considered to be unsafe. Remedial works will be more extensive than cladding replacements and who is to pay for what remains uncertain.

Procurement
Public procurement after Brexit – what can we expect?
Stuart Brown of Trowers & Hamlins examines some key proposals of the Government’s Green Paper on transforming public procurement. Frameworks could become more popular as a result of changes to how some commercial purchasing tools operate.

Contracts
Notices of Claim: the Devil is in the Detail
Chris Utton of HFW examines a recent judgment that should act as a warning to contractors to be familiar with the detail of the notice provisions in contracts. He warns that the content of the notice may be as important to the success of a claim as notifying the claim within time.

Sustainability
Lawyers must promote ‘green’ drafting
Sustainability is increasingly promoted in project specifications as the world tackles climate change. Jane Hughes of Stevens & Bolton LLP argues that lawyers must go further, and have a moral duty to promote sustainability provisions in contract conditions.

Insurance
Simple Words – Hidden Problems
Our insurance expert John D Wright of JD Risk Associates warns about the dangers of assuming you know what a commonly used word actually means when deployed in a policy, reviewing relevant case law.

Alternative dispute resolution
Prevention is better than cure
In our latest Alternative Dispute Resolution series article Tracey Summerell of Dentons UK and Middle East LLP warns of growing pressures likely to provoke disputes. ADR can help them from arising, she advises.

Construction Law January/February 2021

Editor’s comment
Covid procurement highlights need for reform
Editor Nick Barrett argues that the UK’s pandemic response throws up the need for procurement reform.

News
This month’s news roundup includes a warning that construction disputes are set to rise this year due to Covid disruption, as well as details of reforms to the Prompt Payment Code and the announcement of a new construction products regulator to improve building safety.

Legal terms explained
Kemi Wood of Herbert Smith Freehills explain what is meant by collateral warranty.

Guest editor
Prolongation and fair recourse for consultants
Guest Editor Will Buckby of Beale & Company Solicitors LLP argues that many bespoke consultancy appointments are unacceptably harsh in the way they treat claims resulting from prolongation or delay outside of the consultant’s control. Consultants should take a robust stance to negotiate appropriate clauses within their appointments entitling them to additional fees and extensions of time in the event of prolongation or delay.

Legislation state of play table
Our regular round up of the progress of legislation affecting construction as it passes through legislatures comes from Dentons UK and Middle East LLP. Mark Macaulay considers the impact of the new Construction Playbook.

Reports from the courts
Our regular review of the court decisions of most relevance to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who look at a decisions showing that the courts will not enforce adjudication decisions where manifest injustice can be demonstrated; and another highlighting the need for clear drafting to permit the omission of works from a contractor.

Analysis
Reluctant passengers on the virtual disputes journey?
The global pandemic has forced the courts, arbitral institutions, arbitrators, adjudicators and practitioners alike to embrace technology out of necessity rather than choice. Vijay Bange of Duane Morris highlights some of the issues being raised.

CL guides
Brexit
The latest CL Guide comes from Naithan McBride of DLA Piper who examines the impact of Brexit. Final outcomes are not yet known, but key likely impacts can be anticipated.

Review of 2020
Seminal judgements from the Supreme Court
Despite Covid disruption the Supreme Court still managed to hand down some key judgements during 2020 which Hamish Lal of Akin Gump Strauss Hauer & Feld focusses on as highlights of the year.

Review of the year in Scotland
Collaboration helps Scottish construction weather Covid
A strengthened spirit of collaboration across the construction industry in Scotland was one of the positive features of a testing year highlighted in this review of 2020 from Shona Frame, Shona McCusker and Lisa Lennox of CMS.

Construction Playbook
Construction Playbook endorses FAC-1
Professor David Mosey, Centre of Construction Law, King’s College London analyses the government’s new Construction Playbook that will govern public works contracting. Promoting collaborative procurement and long term contracts are among policies endorsed in a Compact with Industry.

Insolvency
Insolvency landscape changed by legislation
Tim Barwick of BDB Pitmans draws a distinction between changes introduced by insolvency legislation in 2020 that are temporary in effect and those that are intended to be permanent. One of the permanent measures represents a significant restriction on the parties’ freedom to contract, he argues.

Insurance
Genoa – A Bridge Too Far?
Insurance expert John D Wright of JD Risk Associates considers the likely impact on insurance of the Morandi Bridge collapse which he says was a classic accident waiting to happen. Compensation payments have yet to be determined and the methodology for determining liability will be scrutinised by insurers everywhere.

Alternative dispute resolution
The witness’s truth – or a version of the truth?
Our latest Alternative Dispute Resolution series article comes from Tracey Summerell of Dentons UK and Middle East LLP who examines findings of a recent report on the accuracy of fact witness memory in arbitrations.