Construction Law: Jan/Feb 2024

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Construction Law: December 2023

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

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

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

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

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

Reports from the courts
Our regular round up of the court cases of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who report on a decision that serves as a useful reminder that the right to adjudication only extends to “construction contracts: as defined in legislation; and one which, although not a construction dispute, reinforces the courts’ approach to exclusion clauses.

Read more

Construction Law: November 2023

Editor’s comment
Public Procurement isn’t working
Editor Nick Barrett finds a report from think tank Reform saying that public procurement isn’t working as it should. Public confidence in the efficiency of the state as a whole is also weak, researchers found.

News
Our news round up reports on water companies in England and Wales who plan what is said to be the largest ever investment in the sector; whistleblowers alleging that HS2 Ltd deliberately covered up its escalating costs to prevent government from cancelling the project; and on government dropping legal action against five former Carillion non executive directors hours before what was being seen as a test case was due to start.

Legal terms explained
Isabel Picton-Turbervill of Herbert Smith Freehills LLP explains legal aspects of value engineering.

Guest editor
Letters of Intent – how to tame the beast
Guest Editor Laughlan Steer of Russell-Cooke LLP laments the all too common approach to letters of intent that is prevalent in the industry. They should be straightforward, but seldom are because best practice is often ignored.

Legislation state of play table
Our regular update of the progress of legislation and government procurement related developments compiled by Alignment Media.

Reports from the courts
Our regular round up of the court decisions of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who report on a case that warns parties to avoid linking final dates for payment to the submission of invoices/notices; and one that cautions parties about commencing a ‘true value’ adjudication until outstanding payment obligations have been complied with.

Analysis
Construction insurance: what to look out for
There were significant developments in the construction industry this year affecting the insurance outlook which Alan Stone, Tom Green, Zack Gould-Wilson and Rebecca Phipps of RPC examine for clues to what to expect in 2024.

CL guides
Performance security
Our regular guide to key aspects of construction law from DLA Piper has Jennifer Price-Thomas explain various types of performance security.

Building safety
Recent building safety cases: the courts are getting stuck in
Sarah Alexander of Dentons UK and Middle East LLP reviews recent court decisions relating to the growing number of building safety related cases since the Building Safety Act 2022 came into force. Developers face prosecution for failing to comply with improvement notice deadlines, one case confirms.

Adjudication
Serial Adjudication in 2023: some like it hot
Karen Gough of 39 Essex Chambers analyses why after over 25 years of the adjudication regime the courts are still kept busy with issues arising from serial adjudications. Claiming parties like them, but they are the bane of adjudicators and judges she says.

Adjudication in Ireland
Enhanced status helps keep the Irish adjudication bar high
Stephen McKenna and Nouman Qadir of Quigg Golden analyse two recent decisions in Irish construction law handed down by the High Court. Adjudicator’s decisions have ‘enhanced status’ in the Irish courts compared to the UK, they point out, and the courts have a track record of supporting the intentions of the legislation.

Party walls
Party walls – we are all affected
Dr Laura Lintott, Visiting Fellow at King’s College London and Supervisor for undergraduates in land and private law at the University of Cambridge, writes in her capacity as a recent PhD graduate from the University of Cambridge on the topic of her thesis: Party Wall Disputes: Legal Coherence and Dispute Management.

Insurance
Insurance and Consequential Loss
Insurance expert John D Wright of JD Risk Associates examines how insurers regard claims for consequential loss. Claims for economic loss give rise to many disputes, he warns.

Alternative dispute resolution
Time to mandate adjudication pupillage?
Caroline McDermott of Turner & Townsend and Kirsti Olson of Dentons UK and Middle East LLP suggest pupilage as one way to increase the supply of adjudicators.

Construction Law August/September 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Construction Law: July 2023

Editor’s comment
Is the UK Government serious about decarbonising?
Following a highly critical report on the government’s decarbonisation plans for the power sector, Editor Nick Barrett asks whether the government is even serious about achieving its net zero goals.

News 
Our round up of major news stories includes a High Court rejection of a judicial review attempt over Sizewell C; more developers signing up to the government’s Developers Remediation Contract; and a review ordered for Homes England.

Legal terms explained
Mike McClure KC and Daniel Waldek of Herbert Smith Freehills LLP explain what is meant by the term ‘Defects Liability Period’.

Opinion
Contractors demand abandonment of bespoke contract in favour of NEC
Transport Scotland has been castigated as the “worst client in the UK” by Scottish contractors. Could abandoning the roads authority’s bespoke contracts in favour of the NEC be the solution?

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

Reports from the courts
Our regular round up of the court cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale and Company Solicitors LLP, who look at a judgment providing clarification on the use of Part 8 proceedings to resist adjudication enforcement; and another judgment that shows the courts will look to the factual matrix when determining the existence of a common law duty of care.

Book Review
The FAC-1 Framework Alliance Contract: A Handbook by David Mosey
Nia Stewart and Genevieve Vaughan of Burges Salmon review the just published handbook written by David Mosey to be used alongside the FAC-1 Framework Alliance Contract, the ‘Gold Standard’ in framework contracting. They welcome the handbook as an invaluable tool to the contract’s use, and value the real life examples of it in practice.

CL guides
Limitation
Our latest CL Guides series article from Jenny Harrison of DLA Piper examines the basic principles of Limitation and the issues that arise.

Adjudication
Jurisdiction clauses are no shield against adjudication
Phil Caton of Aaron & Partners considers the recent case of Motacus Construction Ltd v Paolo Castelli SpA and analyses whether you can adjudicate with a foreign jurisdiction clause.

Contracts
Loose drafting of ADR clauses creates pitfalls
Xavier Milne and Portia Cox of Herbert Smith Freehills LLP review a court decision that highlights the importance of careful drafting of alternative dispute resolution clauses. Beware of casually adopting ‘boilerplate’ clauses, they warn.

Limitation
Supreme Court spells out the limitations of nuisance
Georgia Whiting and Chris Bryden of 4 King’s Bench Walk report on a Supreme Court ruling on a major oil spill case that has implications on what the courts will regard as constituting a ‘continued nuisance’ in construction disputes where limitation is important.

Collaboration
Collaborative contracting models – getting Clients ready
Collaborative contracting has great potential to deliver benefits to both clients and their suppliers but, as Anne-Marie Friel of Pinsent Masons LLP argues, failing to approach it properly and making the appropriate investment of time and resources can result in poor outcomes.

Insurance
Expensive cover no belt and braces solution
Insurance expert John D Wright of JD Risk Associates advises that the insured have a responsibility to act as carefully as they would if they had no insurance cover at all. Other responsibilities will mostly be specifically set out in the policy, and strictly complied with.

Alternative dispute resolution
Time for a radical rethink of DR processes: grasp the AI nettle
In our latest Alternative Dispute Resolution series article Tracey Summerell of Dentons UK and Middle East LLP looks at how Artificial Intelligence might impact upon dispute resolution.

Construction Law: June 2023

Editor’s comment
Remediation contract a missed opportunity
The legally binding Developer Remediation Contract being signed up to by developers might be a missed opportunity and could spark years of legal wrangling, warns Editor Nick Barrett.

News
Our regular news round up reports on another director being disqualified for cartel activity in the demolition sector; prison for a director guilty of health and safety breaches that resulted in a worker’s death; and rejection by the Appeal Court of a challenge to a road construction project.

Legal terms explained
Issues surrounding prolongation costs are explained by David Nitek and Stephanie Lam of Herbert Smith Freehills LLP.

Guest editor
Challenging a Company Voluntary Arrangement
Guest Editors Karen Morean and William O’Brien of Devonshires draw on their own experience of a recent case to show that a Company Voluntary Arrangement can be successfully challenged.

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

Reports from the courts
Our 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 case highlighting the importance of ensuring that payment provisions are carefully followed; and an Outer House of the Court of Session judgment from Scotland that reinforces the difficulty of challenging an adjudicator’s decision.

Analysis
Only a matter of time
Theresa Mohammed and Jack Moulder of Watson Farley & Williams LLP examine a Technology and Construction Court decision that settles a longstanding question concerning the applicability of limitation defences to adjudication. A foothold may have been created for parties seeking to raise such a defence, they argue.

CL guides
Practical Completion
Our latest Construction Law Guides series article comes from Tom Manley of DLA Piper who explains what you need to know about how Practical Completion is treated in contracts and by the courts.

Sustainability
Designing and building for Net Zero
Andrew Croft and Tim Kittow of Beale & Co Solicitors LLP report on the growing number of climate change requirements in contracts all along the contractual chain. Companies need to ensure their sustainability credentials stack up if they are to succeed with tenders, they warn.

Dispute resolution
Court provides masterclass in application of contract provisions to provide a fair result
Chris Bryden of 4 King’s Bench Walk and Georgia Whiting of Ardmore Group analyse a Court of Appeal case centring on the whether an “unusual and surprising” dispute resolution clause in a construction contract was enforceable. The court decided that it wasn’t, underlining the importance of careful drafting.

Adjudication
The issue of set-off – no one size fits all
Karen Gough of 39 Essex Chambers examines the use of set-off in an attempt to frustrate the enforcement of an adjudicator’s decision in a recent case. Numerous cases support the view that this tactic will not work, yet the attempts continue.

Courts
The extraordinary story behind the TCC
Dr Laura Lintott, Counsel at Watson Farley & Williams LLP, discusses the story behind the Technology and Construction Court, how and why it came about.

Insurance
Peace of mind can be hard to come by
Insurance expert John D Wright of JD Risk Associates advises that the insured have a responsibility to act as carefully as they would if they had no insurance cover at all. Other responsibilities will mostly be specifically set out in the policy, and strictly complied with.

Alternative dispute resolution
Expert appointments demand expert drafting
Our latest alternative dispute resolution series article from Cheryl Ferguson of Dentons UK and Middle East LLP reports on rare court guidance on the appointment of an expert.

Construction Law: May 2023

Editor’s comment
Removing ‘dead hand’ of the Treasury could spur growth
Editor Nick Barrett reports on a survey arguing that much of the blame for the UK’s poor record on infrastructure investment and procurement can be laid at the door of the Treasury.

News 
Our regular news round up reports on Build UK recommending its members to shun six contract terms; a new collaborative procurement approach in the water sector; and a demand that road builders earn a diploma in integrated project delivery.

Legal terms explained
Daniel Waldek and Tse Wei Lim of Herbert Smith Freehills explain what is meant by ‘pacing delay’.

Guest editor
Building Safety Act 2022: where are we now?
Guest Editor Tim Seal of Ridgemont examines where we have got to with building safety. The picture is complex and the outcome far from predictable, he argues.

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

Reports from the courts
Our regular round up of the court decisions of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine a case highlighting the risks of contracting with companies with parlous finances; and an appeal court ruling that shows the value of careful drafting of dispute resolution provisions.

Analysis
Bond Calls: The Essential Cocktail of Considerations – Provided Shaken, Not Stirred
Bond markets have been in upheaval recently, with knock-on impacts on decisions on whether to make or defend calls on performance security on construction projects. Louise Woods, Ciara Ros, Jarrod Gutsa and Lauren-Emma Parrott of Vinson & Elkins examine the issues.

CL guides
The Construction Act
In our latest CL Guides series article Jess Tierney of DLA Piper explains why it is important to understand the Construction Act.

Adjudication
Adjudicator took too narrow a view of jurisdiction
Stephanie Geesink, Of Counsel, and Dom Turner-Harriss of Watson Farley & Williams LLP examine a case where the court decided that the adjudicator had taken too narrow a view of their own jurisdiction. Natural justice had also been breached.

Enforcement
‘Going Rogue’ Revisited: Financial sanctions and their impact on enforcement proceedings
Vijay K Bange and Paul-Raphael Shehadeh of Duane Morris consider problems relating to the enforcement of court or arbitration decisions against a background of international sanctions.

Contracts
Consequences of entering into a contract with a dormant company
Stephen McKenna of Quigg Golden Limited (who acted on behalf of WRB (N.I.) Limited in these proceedings) analyses a case which highlights the consequences of entering into a contract with a dormant company and demonstrates that Courts are likely to enforce an adjudicator’s decision by way of a refusal to issue a stay of execution.

Contract management best practices to limit the risk of disputes
In the second part of his article on contract management best practice Guillaume A Hess of King & Spalding says that getting the contract right at the outset is key, and argues that introducing collaborative processes is an effective disputes risk reduction strategy.

Insurance
Beware of average meanings
Insurance expert John D Wright of JD Risk Associates examines what the word ‘average’ means in insurance policies. Insurers and brokers might offer guidance, but professional advice should be sought, he warns.

Alternative dispute resolution
Tackling poor payment practices and raising awareness of ADR tools
In our latest alternative dispute resolution series article Kirsti Olson of Dentons UK and Middle East LLP looks ahead to the results of the government’s Payment and Cashflow Review.

Construction Law: April 2023

Editor’s comment
No sign of infrastructure gear change
Editor Nick Barrett laments the lack of urgency in infrastructure investment shown by government, as highlighted by a National Infrastructure Commission report. Threats to delay HS2 are another example of this snail’s pace.

News
Our news round up reports on one of the biggest fines ever for health and safety breaches; a warning from government’s spending watchdog the National Audit Office that HS2 delays will add to costs; and fines of some £60 million for bid rigging among demolition contractors.

Legal terms explained
David Nitek and Noe Minamikata of Herbert Smith Freehills LLP explain what relational contracts are.

Guest editor
Paying for past mistakes: the developer remediation contract
Guest Editor Rachel Chaplin welcomes the positive steps being taken in the wake of the Grenfell Tower tragedy to improve fire protection and safety of buildings. But shouldn’t government be shouldering some of the blame and cost because of its own regulatory failures, she asks?

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

Reports from the courts
Our Regular round up of the court cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine the decision in an appeal that emphasises the need for parties to either raise issues in respect of the validity of payment applications/payment notices or to reserve their positions without delay; and another that shows the current judicial uncertainty regarding the extended limitation periods under the Building Safety Act 2022.

Analysis
Developments expected during 2023
Alan Stone, Tom Green and Zack Gould Wilson examine some significant developments in the construction industry last year, and take a look ahead at some key developments expected in 2023.

CL guides
Insolvency
Rachel Chaplin and Cai Cherry of DLA Piper explain UK insolvency processes.

Limitation Periods
Defective Premises Act 1972: A new dawn for historic claims.
The Building Safety Act has extended limitation periods for claims under the Defective Premises Act. Stephanie Geesink and Dom Turner-Harriss of Watson Farley & Williams LLP examine the attitude of the courts to parties attempting to tack onto ongoing proceedings new claims that were previously time barred.

Tort of nuisance
The tort of nuisance – the categories are not closed
Chris Bryden of 4 King’s Bench Walk and Georgia Whiting, Legal Counsel at the Ardmore Group, consider a Supreme Court decision that provides a general restatement of the fundamental principles of the law of nuisance, in a follow up to their previous article on the Court of Appeal decision in the same case.

Contracts
Contract management – best practices to limit the risk of disputes
Guillaume A Hess of King & Spalding argues that best practice in contract management is essential for successful administration of projects, but also to minimise the risk of disputes arising. In the first of a two part series, he warns that there is no one size fits all approach.

Contracts
Contract terms criticised by tree felling inquiry
Amey found itself embroiled in a long running dispute over a tree felling programme that an inquiry says it partly caused through the terms of a contract that it signed. The experience suggests that risk management needs to consider the impact of works on local feelings.

CLC
The Construction Leadership Council: a busted flush or a potent force for change?
Set against its own targets the Construction Leadership Council’s performance has been inadequate and it fails to address the issue that fundamental and radical changes in construction procurement and payment are needed, argues Professor Rudi Klein of Klein Legal who suggests looking to Singapore for pointers to the way forward.

Insurance
Insuring the design risk – a minefield for all parties
Insurance expert John D Wright of JD Risk Associates examines how claims relating to design issues are resolved. Design risk is a minefield for all concerned, but particularly the insurers, he explains.

Alternative dispute resolution
“Merchants of peace” in our global supply chains
Our latest Alternative Dispute Resolution series article comes from Tracey Summerell of Dentons UK and Middle East who salutes the International Chamber of Commerce’s 100 year contribution to dispute prevention.

Read more

Construction Law: March 2023

Editor’s comment
Advanced Procurement Agency at heart of call for reform
Calls for an Advanced Procurement Agency are at the heart of a reform agenda being promoted by former Prime Minister Tony Blair and former Conservative Party leader William Hague. Editor Nick Barrett says reform is sorely needed but asks if a new agency can deliver it.

News  
This month’s news round up includes a High Court agreement for an old common law challenge to sewage dumping by water companies to go ahead; an out of court settlement of a PFI hospital dispute; and an Action Plan to speed up infrastructure planning.

Legal terms explained 
David Nitek and Noe Minamikata of Herbert Smith Freehills LLP explain what is meant by the delaying tactic called ‘warehousing’

Guest editor
Dangers of dabbling in Construction Law
Guest Editor Tim Seal, Head of Construction Law at Ridgemont, says highly specialised construction lawyers have an almost uniquely direct connection with the industry they serve, and warns against using non experts for legal advice in what is a very complex area.

Legislation state of play table 
Our regular update of the progress of legislation and government procurement related developments compiled by Construction Law staff; with a Commentary on government support for energy intensive industries.

Reports from the courts
Our Regular round up of the court cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP looks at a decision that confirms that the right to commence adjudication proceedings ‘at any time’ does not conflict with the limitation defence under the Limitation Act 1980; and another that shows the bar is set high for parties intending to challenge an arbitrator’s award if they have to show that it is ‘obviously wrong’.

Analysis
NEC X29 and the development of climate change clauses
Alice Herbert of HSF looks at the NEC’s secondary option X29 clause, the first UK standard form construction contract clause to address climate change, which she welcomes as a stimulus to good climate change practice.

CL guides
Concurrent delay
Our latest Construction Guides series article comes from Melissa Moriarty of DLA Piper who examines concurrent delay, which differs between Scotland and England.  

Contracts
Turbo-charging early contractor involvement
Professor David Mosey CBE of the Centre of Construction Law & Dispute Resolution, King’s College London asks why the take up of Early Contractor involvement has been so dilatory. He suggests ways of turbo-charging its take up following the Construction Leadership Council’s report that it would improve efficiency of design and the design process. 

International arbitration
Survey forecasts growth of international arbitration in the energy sector
Vijay Bange and Ed Keating of Duane Morris discusses the findings of an energy disputes focussed survey that found international arbitration to be the preferred method of dispute resolution for international projects. 

Privilege
Keeping proceedings just and fair
Of Counsel Stephanie Geesink and Emma Thompson and Dominic Turner-Harriss of Watson Farley & Williams LLP examine a recent judgment that supports the argument that once a privileged document is disclosed, any privilege attached is waived. The court was motivated to keep the proceedings just and fair between the parties, they conclude. 

Corruption
A global renaissance of trust – demonstrating “intelligent trust” to mitigate infrastructure corruption risk
South Africa based anti corruption practitioner Anton Krause of GIACC-SA says that trust is one of the three pillars of capitalism, and is what makes world markets work. Corruption undermines trust and combatting it should be a key part of an overall risk management strategy, he argues. 

Insurance
Recovery from other sources
Insurance expert John D Wright of JD Risk Associates explains how insurance policies prevent policyholders from being paid more than the sum indemnified by cover from other sources. Insurance law does not permit the insured to benefit from their loss.    

Alternative dispute resolution
Alternative adjudication decisions
Our latest Alternative Dispute Resolution series article from Sarah Alexander of Dentons UK and Middle East LLP examines what happens when a court refuses to enforce an adjudicator’s decision on jurisdictional grounds.

Construction Law: January 2023

Editor’s comment
Developers have ‘nowhere to hide’ over Grenfell related repair costs
Editor Nick Barrett detects and welcomes a shift in approach in the government’s response to the 2017 Grenfell Tower fire, which has at last been announced. Expect to see more court cases around cladding repairs disputes. 

News
In this month’s news round up we have a report from the Public Accounts Committee on the first year of operation of the UK Investment Bank – could have done better apparently; a company director receiving a jail sentence for health and safety breaches that led to a worker’s death; and a heavy fine for health and safety breaches at another company which also resulted in a worker’s death.

Legal terms explained
Lucinda Hill and Noe Minamikata of Herbert Smith Freehills explain what is meant by a defect, and what damages might be available.

Guest editor
How international collaboration can reduce the costs of construction disputes
English law has benefitted from being ‘open for business’ faster than other jurisdictions post the Covid crisis, partly due to familiarity with technology, says Guest Editor Bill Barton, Director of Barton Legal, who recommends that international companies should collaborate with English lawyers for more cost effective contracts.

Legislation state of play table 
Our regular update on the progress of legislation and other developments affecting construction, compiled by Barrett Byrd Associates.

Reports from the courts
Our regular round up of the cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP looks at a case showing why Parties should take care when seeking to place reliance on previous adjudication decisions; and another judgment which should be taken as a reminder to parties to take care when entering into ‘back-to-back’ contracts, as these will likely impose higher standards of care.

Analysis
Cladding fire safety claims – loss too remote?
Laura Lintott, Of Counsel, and Sam Goodwill of Watson Farley & Williams LLP analyse a case that highlights the hesitancy of the courts to allow parties to collateral warranties to evade liability easily on the basis that the loss was too remote. Given the current focus on fire safety and cladding more cases like this are to be expected.

CL guides
Directors’ Health and Safety Requirements
In our latest Construction Guides series article from DLA Piper, Rachel Chaplin explains the extent of health and safety responsibilities of company directors. 

Review of 2022
Review of construction law in 2022
Our review of the main construction law related events of 2022 comes from Victoria Peckett, Nisha Nyant and Sharni Mellors of Clyde & Co LLP. Unpredictability is the new norm, they conclude, while hoping for less turbulence in 2023.

Review of 2022 in Scotland
Scottish construction law review 2022
Lee Lothian and Sophie Malley of CMS review the main construction law related events in Scotland in 2022.  

Sanctions
‘Going Rogue’ – The effects of sanctions on the construction Industry
The imposition of sanctions on Russia in response to its invasion of Ukraine enjoys widespread support across the western world, despite having impacts on industries in the economies of countries that support Ukraine. Vijay Bange of Duane Morris explains how the sanctions affect construction and engineering. 

Adjudication
Records key to defence against ‘smash and grab’
John Wallace of specialist construction and real estate boutique law firm Ridgemont examines recent case law surrounding pay less notices. Businesses are risking it all by failing to ensure contractual payment mechanisms are being followed and failing to issue valid notices on time to protect their positions, he argues.  

Insurance
Professional Indemnity market problems
Insurance expert John D Wright of JD Risk Associates reports an easing in the market for cover with new entrants at least partly accounting for a slowing down of rate increases. Problems still remain in the post Grenfell Tower tragedy world however.   

Alternative dispute resolution
Reasons to be cheerful ‘23
The latest in our alternative dispute resolution series comes from Tracey Summerell of Dentons UK and Middle East LLP who looks back at achievements of the ADR community in 2022.