Construction Law: December 2022

Editor’s comment
Virtue signallers beware
A report from the Institution of Civil Engineers should be taken as a clear warning that mere virtue signalling and ‘green-washing’ instead of properly addressing sustainability will frighten off infrastructure investors and lead to claims, warns Editor Nick Barrett.

News
This month’s news roundup features a report discussing how addressing climate-related risks on infrastructure projects can help to secure private sector funding and avoid future litigation. We also highlight a court ruling in which an adjudicator’s decision was enforced and detail a study which found that, on average, disputes are costing major projects more than a third of committed capital expenditure.

Legal terms explained
James Ballheimer and Mathew Shelley of Herbert Smith Freehills LLP continue their explanation of the Building Safety Act 2022 regulatory regime and associated secondary legislation.

Guest editor
The need for innovative solutions
Guest Editor Laura West of CMS argues that a new way of thinking of construction projects is needed to incentivise and drive innovation. Successful innovation projects recognise “innovation” as a separate process rather than trying to bake it into the design or construction phase.

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction is compiled by News Editor Steve Dale.

Reports from the courts
Our regular round up of court decisions of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, analysing a judgment that highlights the importance of serving termination notices strictly in accordance with contractual requirements; and another that underlines the fundamental importance of proper service of a Notice of Adjudication.

Analysis
Planning and procuring the digital golden thread
Anne-Marie Friel and Alastair Dale of Pinsent Masons LLP Infrastructure explain why contractors must implement carefully thought out digital procurement and contracting strategies to achieve critical safety and sustainability outcomes for projects.

CL guides
Key Ancillary Agreements
In our latest CL Guides series article from DLA Piper, Jon Baker examines surrounding ancillary agreements.

Construction Playbooks
Construction Playbooks support drive for change
Shona Frame of CMS examines the private sector response to the government’s Construction Playbook. Although they are both based on the same principles, care must be taken as aspects of them need to be considered in contract documentation.

Private Finance Initiative
High Court provides useful guidance on complex defects disputes
Mark Lawrence of Macfarlanes reports on a High Court judgment that provides insight into how the TCC will tackle a range of issues likely to arise as Private Finance Initiative contracts come to an end, as well as claims under other contracts.

Performance Bonds
Contractor losses flowing from bond calls
Kwadwo Sarkodie and Kiran Giblin of Mayer Brown International LLP look at how contractors can suffer repercussions from the Employer calling on performance bonds. The consequences for a contractor are potentially devastating, they warn.

Novation
When has an implied novation occurred?
Victoria Peckett and Victoria Coffey of Clyde & Co LLP consider a recent judgment that provides a reminder as to when an ‘implied novation’will be considered to have occurred. The case also provides guidance on the meaning of the phrase ‘such consent not to be unreasonably withheld’.

Insurance
The true nature of insurance
Insurance expert John D Wright of JD Risk Associates analyses how the courts view the concept of insurable interest. The existence of insurable interest may be challenged in all kinds of unusual circumstances, he warns.

Alternative dispute resolution
The importance of recognising the effects of stress when settling supply chain disputes
In our latest Alternative Dispute Resolution series article Tracey Summerall of Dentons UK and Middle East LLP examines the role that stress can play in disputes.

Construction Law: November 2022

Editor’s comment
Planning reform should be a new Government priority
Editor Nick Barrett says at least one remnant of former Chancellor Kwasi Kwarteng’s legislative proposals deserves to survive, as the UK’s planning regime desperately needs an overhaul.

News
This month’s news roundup focuses on a pair of High Court rulings in disputes over alleged construction defects on PFI schemes, as well as the latest in a string of legal challenges brought against major road projects on environmental grounds.

Legal terms explained
James Ballheimer and Mathew Shelley of Herbert Smith Freehills LLP explain the Building Safety Act 2022.

Guest editor
When is a frolic of one’s own a breach of natural justice?
Guest editors Chris Bryden and Georgia Whiting of 4 King’s Bench Walk argue that the role of natural justice is critical to the fairness of the legal decision making process, as a recent Scottish case shows.

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction is compiled by News Editor Steve Dale, who also comments on the construction industry’s requests for the establishment of a Sustainable Buildings Taskforce.

Reports from the courts
Our regular round up of court decisions of most interest to construction, from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, includes a rare example of NHBC’s arrangements with its approved contractors being tested in the courts; another case stands as a reminder to ensure that contracts are clear and unambiguous, especially when the works are divided into phases or sections, and when agreeing to design life obligations.

Analysis
Contractor losses flowing from termination of contracts
Kwadwo Sarkodie and Kiran Giblin of Mayer Brown International LLP examine issues arising from the growing number of disputes relating to termination of contracts. In the event of a contested termination on a key project, being able to formulate robust and well supported claims could prove crucial to a contractor’s survival, they warn.

CL guides
Document management
In our latest Construction Guides series article from DLA Piper Melissa Moriarty examines the importance of effective document management, which can play a key role in preventing disputes from arising.

Adjudication
Adjudication: Can’t pay, won’t pay!
Barrister Karen Gough of 39 Essex Chambers applauds the success of statutory adjudication in the UK in this examination of several strategies defendants can use to resist enforcement of awards. The bar to success is set very high for some of them.

Validly serve notices before appointing an adjudicator
How will the courts approach evidence on whether a notice of adjudication was validly served when the parties’ accounts differ? Stephanie Geesink, Of Counsel at Watson Farley & Williams, reports on a ruling that suggests using email as well as hand delivery when serving documents might be a good idea.

Collaboration
Overcoming the design and construction divide
In the May issue of Construction Law barrister Rudi Klein and risk management consultant Stephen Woodward presented the leadership challenge facing the UK construction industry. Here they consider one aspect of that challenge: overcoming the divide between design and construction which remains a major barrier to effective collaboration.

Arbitration
To appeal or not to appeal, that is the question!
Laura Lintott and Sergio de Aguiar of Watson Farley & Williams LLP ask whether incorporating the ICC Rules into an arbitration agreement leads to waiving the right to appeal for the purposes of section 69 of the Arbitration Act 1996.

Insurance
Ever widening cyber threat
Insurance expert John D Wright, Principal of JD Risk Associates, examines the insurance market response to the increasing prevalence of cyber crime, which construction companies of all sizes are exposed to. Companies can also inadvertently commit cyber crime themselves, he warns.

Alternative dispute resolution
International arbitration in the modern era
In our latest alternative dispute resolution series article Kirsti Olson of Dentons UK and Middle East reports on a modern approach to arbitration seen in new arbitration rules from Scotland.

Construction Law – October 2022

Editor’s comment
Report reveals industry unprepared for growing pressures
Editor Nick Barrett finds little evidence in the RIBA Contracts and Law Report that the industry is ready to adopt more collaborative approaches.

News
Our latest news roundup highlights new evidence suggesting construction disputes are on the rise, a call to avoid a return to ‘race to the bottom’ conditions, and a significant injunction ruling to block HS2 protests.

Legal terms explained
Anant Rangan and Xavier Milne of Herbert Smith Freehills LLP explain how adjudication decisions can be enforced.

Guest editor
The green future of construction
Guest Editor Iain Wishart, a highly experienced Quantity Surveyor and Quantum Expert, argues that the growing focus on environmental issues means contract administration on all construction projects is going to become more difficult, time consuming, and expensive. Failure to manage the processes will result in delays and perhaps more disputes, he warns.

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction is compiled by News Editor Steve Dale, who also provides a commentary on professional indemnity insurance challenges and a new model insurance clause designed to cover fire safety risk on projects.

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 that demonstrates the courts’ reluctance to find that liquidated damages provisions are unenforceable for reasons of uncertainty where an alternative interpretation can be found; and a Court of Appeal ruling that provides clarification to beneficiaries of collateral warranties.

Analysis
Ireland’s Construction Contracts Act and its application to projects abroad
Roberta Downey and Ciaran Williams of Vinson & Elkins analyse the Irish Construction Contracts Act, which introduced statutory adjudication to the Republic in 2016. The Act does not expressly limit its application to projects that are executed in Ireland.

CL guides
Damages
In our latest Guides to construction law series Rachel Chaplin of DLA Piper explains the use of damages to compensate parties for breaches of contract or a tort.

ESG
Contracting for ESG
Construction has enthusiastically committed to the government’s net zero ambitions, and pledged to respond positively to other Environmental, Social and Governance demands. Shona Frame and Charlotte Eccles of CMS warn that traditional contractural risk allocation approaches might not be best suited to promoting success in these areas.

Contracts
Drafting for a greener future
Tim Kittow and Harry Coates of Beale & Company Solicitors LLP welcome the benefits that the increasing amount of ‘green drafting’ of construction contracts will deliver, but caution that there are potential risks associated that must be appreciated from the outset.

Adjudication
Meaning of a ‘contract’ defined for adjudication
Barry Hembling of Watson, Farley & Williams LLP reports on an important Court of Appeal decision issued in June 2022, which considered for the first time the statutory meaning of a “construction contract” for adjudication purposes.

Defects
Defects and the courts’ approach to ‘Waking Watch’ schemes
Laura Lintott, Of Counsel at Watson Farley & Williams LLP examines case law on the consequences of defects in projects. The cost of ‘waking watch’ schemes may not be covered under new home warranty insurance in future, she warns.

Insurance
Building defects insurance
Insurance expert John D Wright of JD Risk Associates examines building defects insurance which although not compulsory in the UK, offers peace of mind to policyholders. Recent case law confirms that the courts will take a firm line where defendants seek to avoid liability under guarantee policies intended to provide peace of mind to policyholders.

Alternative dispute resolution
Refusing to mediate – implications for costs in court actions
Sarah Alexander, Counsel at Dentons Middle East and Europe LLP, looks at recent cases shedding light on factors the courts might consider when determining costs where mediation was not attempted.

Construction Law August/September 2022

Editor’s comment
Financial regulator on trail of Carillion
Editor Nick Barrett argues that words addressed to accountants by regulators looking at the Carillion collapse should also be taken on board by construction.

News
This month’s news roundup includes details of a landmark cladding case that will be significant for many involved in similar disputes, as well as a report that shows a decline in profit warnings among large construction companies – while smaller firms continue to struggle – and insights from the Technology & Construction Court’s latest annual report.

Legal terms explained
Lucinda Hill of Herbert Smith Freehills LLP explains what is meant by Defective Works.

Guest editor
Leadership, regulation and a film about Notre Dame
Guest editor Amanda Bucklow, a widely respected Independent Commercial Mediator, makes a plea for considering the benefits of using mediation. Without mediation’s confidentiality and without-prejudice nature, many disputes would never reach settlement, she argues.

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction is compiled by News Editor Steve Dale, who comments on the growing consensus behind the idea of mandatory whole life carbon assessments in the built environment.

Reports from the courts
In our latest update on the court decisions of most interest to construction Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP examine a case that underlines the importance of objectively clear and unambiguous Pay Less notices; and one that summarises the test that the court will consider when determining applications for freezing injunctions.

Analysis
Net Zero Strategy deemed unlawful
Government’s Net Zero Strategy has been ruled inadequate and unlawful by the High Court. News Editor Steve Dale explores the ruling and asks what implications there could be for the construction sector.

CL guides
CDM Regulations
In our latest construction guides series from DLA Piper, Rachel Chaplin explains how the Construction (Design and Management) Regulations 2015 work and the obligations placed on Dutyholders as defined by the Act.

Building safety
High Noon for new building safety sheriff?
Barrister Philip Bambagiotti of 3PB considers the recently assented Building Safety Act 2022. A more rigorous approach to building safety is signalled, but he doubts that the Act will do what is needed.

Suspension
Suspension of construction contracts
Thomas Bilton and Jane Hughes of Trowers & Hamlins LLP examine Employer’s contractual suspension rights under the most commonly used building contracts, namely the JCT Design and Build contract (2016 edition), the NEC4 engineering and construction contract and the FIDIC 2017 ‘Red Book’ contract.

Adjudication
Playing the adjudication game
Karen Gough, a barrister at 39 Essex Chambers London, examines a recent case that contributes to the growing body of decided cases supporting the integrity of the adjudication regime.

Technology
Technology in construction disputes – managing data and proving claims
The advantages of using new data gathering technologies are many, but as Shona Frame, Jane Fender-Allison and Duncan Turner of CMS point out in this analysis of the opportunities, a range of new issues are created.

Insurance
Building Safety Act may reduce insurance costs – in the long term
Insurance expert John D Wright of JD Risk Associates examines the insurance implications of new post-Grenfell safety laws. Higher prices and more onerous terms can be expected, he warns.

Alternative dispute resolution
Gender parity in expert appointments: an issue for us all
Our latest Alternative Dispute Resolution series article comes from Tracey Summerell of Dentons UK and Middle East who describes initiatives to increase gender parity in appointments of expert witnesses.

Read more

Construction Law July 2022

Editor’s comment
Bid rigging a thing of the past?
Editor Nick Barrett detects signs that some anti competitive behaviour in construction could be viewed as a thing of the past by competition regulators; but never underestimate criminal stupidity he warns.

News
This month’s news roundup features a warning that poor information management is affecting construction firms’ ability to defend themselves against claims, as well as a cladding dispute involving Balfour Beatty and a report which suggests funders are likely to steer clear of high polluting schemes.

Legal terms explained
Sebastian Morton, Elissa Patel and Mathew Shelley of Herbert Smith Freehills LLP explain how subrogation works.

Guest editor
Root and branch reform needed to tackle building safety
Guest Editor, Philip Bambagiotti of 3PB Barristers questions whether the proposed post Grenfell approach to building safety will deliver. A new law reform strategy is needed to address widespread problems of defective buildings, he argues.

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction from News Editor Steve Dale who provides a commentary on the CLC’s reponse to rising inflation.

Reports from the courts
Our regular round up of recent court decisions of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine a case that reinforces the courts’ robust approach to adjudication enforcement, and highlights the importance of compliance with the immediate payment obligation where the requisite notices have not been served; and a fire safety related case where the decision contrasts with a recent claimant-friendly decision.

Analysis
Five years on from Grenfell – a review of progress
News editor Steve Dale takes stock of the key building safety developments which have followed in the aftermath of the Grenfell Tower fire. Progress has been slow, with some corners of the industry being urged to show greater impetus.

CL guides
Contract Administration
In our latest CL Guides series article Lynn Auchterlonie of DLA Piper examines the role of the Contracts Administrator.

Technology
Enabling the digital twin
Anne-Marie Friel and Alastair Dale of Pinsent Masons LLP explain why BIM will be at the heart of developing the ‘golden thread’ of digital information, and argue that contracts and procurement strategies need to change their approach to accommodate this.

Contracts
Dealing with inflation under NEC Secondary Option X1
Inflation is a problem for the industry and it is getting worse. Isobel Moorhouse and Jane Hughes of Trowers & Hamlins LLP examine how the NEC4 engineering and construction contract handles the need for price adjustments.

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

Arbitration
Tiered Alternative Dispute Resolution Agreements
Vijay K. Bange of Duane Morris examines a recent Hong Kong court decision affecting tiered Alternative Dispute Resolution (ADR) provisions that considers if it is within the jurisdiction of the courts to decide if the parties to a contract have complied with the ratchet dispute resolution procedure, or whether this should be dealt with by the arbitral tribunal.

Insurance
Insurers still challenging Covid claims
Insurance expert John D Wright of JD Risk Associates warns that although Covid remains a threat to businesses the insurance industry does not regard pandemics as being covered by non damage denial of access clauses. A Supreme Court ruling leaves some existing individual claims unresolved.

Alternative dispute resolution
ADR’s place in the Digital Justice System
Our latest alternative dispute resolution series article, from Tracey Summerell of Dentons UK and Middle East, analyses the role that might be played by ADR as the justice system digitalises.

Construction Law June 2022

Editor’s comment
Social value a procurement challenge
Editor Nick Barrett asks how assessing social value factors in bids will be handled when the Procurement Bill becomes law.

News 
This month’s news roundup includes a look at the long awaited Procurement Bill, plus a warning that claims related to the impacts of the Ukraine crisis are on the rise and a report that highlights significant modern slavery risks in the sector.

Legal terms explained
Valerie Chee and Mathew Shelley of Herbert Smith Freehills LLP explain how performance guarantees and liquidated damages allocate risk in contracts.

Guest editor
The Sky’s the Limit – but how long will that be true?
Guest Editor James Davison of 3PB Barristers bemoans the disproportionality between the amounts in dispute in some low value cases and the legal costs, and asks if the Construction Act, which is starting to feel like a solution to a problem from another time, needs reform

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction from News Editor Steve Dale who provides a commentary on the Levelling Up & Regeneration Bill.

Reports from the courts
Our regular round up of recent court decisions of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who report on a rare example of the courts refusing enforcement of an adjudicator’s decision; and another that acts as a reminder to ensure that the basis of the pricing and the payment mechanism in a contract is expressed clearly and understood from the outset to avoid later disputes.

Analysis
Sustainability in Construction
Zoe Stollard and Alex Clark of Browne Jacobson report from a Roundtable event involving construction, manufacturing and energy clients that discussed, among other things, best practice in low carbon procurement. Firms must ensure the principles of sustainable construction are not superseded by cost and aesthetics, it was highlighted.

CL guides
FIDIC
The latest in our Construction Guides series comes from Rachel Chaplin of DLA Piper who examines key aspects of the FIDIC suite of contracts.

Adjudication
“What goes without saying…”
Barrister, arbitrator and adjudicator Karen Gough of 39 Essex Chambers London describes the circumstances under which parties to adjudications can refuse to pay adjudicator’s fees, examining a Court of Appeal decision that clarifies adjudicators’ entitlement to payment on resignation for grounds not expressly dealt with in the Act or Scheme.

When a frolic becomes unfair
Barry Hembling of Watson, Farley & Williams LLP analyses two recent adjudication related judgements with implications for when a decision can be set aside on natural justice grounds. Have they provided more questions than answers?

Legislation
Building Safety Act 2022
Christopher Leadbetter, Sharni Mellors, and Iain Boyle of Clyde & Co provide an overview of the main features of the Building Safety Act, the largest ever statutory intervention in the construction industry. New obligations will impact almost all levels of the construction and development industries, they say.

Contracts
Climate clauses for construction contracts
A group of construction professionals, including lawyers, has taken a pro bono initiative to draft contract clauses to support the climate change battle. Leonie Brabant and Josh van den Dries of the Chancery Lane Project outlines the clauses and invites industry support for further related developments.

Insurance
Practical Completion – the elephant in the room
Insurance expert John D Wright of JD Risk Associates examines the insurance implications of practical completion. Liabilities for liquidated damages end with practical completion, but this can throw up difficulties, he warns.

Alternative dispute resolution
Disputes of the future?
Tracey Summerell of Dentons UK and Middle East reports from a disputes conference in our latest alternative dispute resolution series article. Sustainability and human rights will increasingly feature in contracts, it is clear.

Construction Law: May 2022

Editor’s comment
Modern slavery reporting lacks conviction
News Editor Steve Dale considers how shortcomings in modern slavery reporting among large companies can be addressed to help stamp out the problem.

News
This month’s news roundup leads with Housing Secretary Michael Gove’s threat to pursue cladding manufacturers for contributions to remediating unsafe buildings. We also focus on the implications of a new procurement directive that could see public authorities cutting ties with Russian suppliers, and a fresh call for legislation on cash retentions.

Legal terms explained
Stephanie Lam and Mathew Shelley of Herbert Smith Freehills LLP explain what is meant by reasonable skill and care.

Guest editor
Beyond the Looking Glass
Guest Editors James Wyatt, Megan Everett and Robert Meakin of Clyde & Co highlight key risks facing construction as revealed in their recent Looking Glass Report. The industry has the adaptability to thrive if it tackles the risks head-on and embraces new practices.

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction from News Editor Steve Dale who provides a commentary on a CLC guidance note on collaboration.

Reports from the courts
Our regular round up of the court decisions of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP examines a case that will interest anyone hoping to invoke force majeure clauses against the background of sanctions against Russia; and another that serves as a reminder that terminating parties must take care to follow contractual termination procedures in their entirety.

Analysis
UK construction urgently needs challenging leadership
In a call to long overdue action barrister Rudi Klein of KleinLegal, formerly CEO of the Specialist Engineering Contractors Group, and risk management consultant Stephen Woodward argue that despite widespread recognition that the industry’s business model is unsustainable, reform will not be achieved unless all those with a passion for radical industry improvement are prepared to join forces to put the industry on a healthier and viable footing.

CL guides
Termination
The latest in our Construction Law guides series from DLA Piper is by Clare Rushton, who examines termination provisions in contracts. Termination is rarely uncontentious and frequently results in significant disputes, she warns.

Procurement
Procuring Net Zero Carbon Construction
Professor David Mosey of King’s College London Centre of Construction Law & Dispute Resolution explains how all parties in the supply chain can use procurement and contracting systems to meet net zero carbon targets.

Arbitration
Amuse Bouche to the Arbitration Act Reform
Theresa Mohammed and Laura Lintott of Trowers & Hamlins LLP report on the Law Commission’s review of the Arbitration Act 1996. The hope is that reforms will increase enthusiasm for English Law to continue to dominate as the preferred choice of law for international arbitrations.

Adjudication
Pay Up or Feel the Heat: Grove in Action
Barrister James Davison of 3PB Barristers examines a 26 page Judgment from the Technology and Construction Court that touches on the key issues for payment rights and adjudication. Changes to the way parties approach adjudication are recommended.

Contracts
A discussion of JCT Fluctuations Options A, B and C
Jane Hughes and Isobel Moorhouse of Trowers & Hamlins LLP analyse the fluctuation clauses in the JCT Design & Build contract, which are becoming increasingly important against a background of rising inflation. Which type of fluctuation provision to incorporate in a contract, and whether to amend it, will be highly project specific.

Insurance
Insurance brokers can be your allies
Insurance expert John D Wright explains why insurance brokers can be valuable allies to construction companies facing increasingly complex challenges. Choice of broker is always important as some might not always meet the standard of care demanded.

Alternative dispute resolution
Answering the substantive claim
In our latest alternative dispute resolution series article Millie Leonard of Dentons UK and Middle East examines an appeal ruling in a case where a party sought to stay proceedings as issues were being referred to arbitration.

Construction Law; April 2022

Editor’s comment
Backpedalling on procurement reform
Editor Nick Barrett warns that previous government commitments to public procurement reform are under threat of being diluted.

News
This month’s news roundup covers a possible policy reversal regarding emphasis on social value in public procurement, further warnings of project delays and insolvencies in light of the Ukraine crisis and and update on evidence heard by the Grenfell Tower Inquiry.

Legal terms explained
Xavier Milne of Herbert Smith Freehills LLP explains what is meant by Consequential Loss.

Guest editor
Challenging times for construction professionals and design and build contractors
Guest Editor Tom Pemberton of Lawrence Stephens Solicitors warns construction professionals and design and build contractors to take care both when negotiating their contracts and in managing their work to minimise the risk of claims for alleged breach of duty of care. The risks are increasing, he cautions.

Legislation state of play table
Our regular update of the progress of legislation and new regulations as it passes through the legislative process, prepared by Construction Law staff writers. News editor Steve Dale provides a commentary on a key issue.

Reports from the courts
Our regular review 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 that shows the Claimant-friendly approach being taken by the courts in relation to amendments to pleadings and limitation, especially in relation to cladding / fire safety claims; and one that acts as a further reminder of the risks of entering into oral contracts.

Analysis
Managing weather risk: an essential part of contracting playbooks
Weather is a key and increasingly significant element of risk for construction projects. Diarmuid Bairéad of Turner & Townsend argues that it is time for climate risk to be brought out of the cold and made an integral part of the contracting playbook.

CL guides
Professional appointments
In our latest Construction Law Guides series article from DLA Piper, Lina O’Gorman looks at professional appointments. Risk allocation varies between standard forms and between them and typical bespoke appointments.

Legislation
Scotland and England differering on building safety reform
Caroline Maciver and Lynda Ross of Burness Paull LLP explain the differing approaches to reform of building safety being taken by the Scottish and UK governments. The ‘broken system’ in England contrasts with the less radical reshaping of the system taking place in Scotland.

Frameworks
Collaborative contracting key to construction frameworks
Anne-Marie Friel and Samantha Conkling of Pinsent Masons LLP support Professor David Mosey’s report on Frameworks and its recommendations. They warn that there are poorly drafted frameworks that do little to promote the collaboration that the Gold Standard urges.

Litigation
Experts on Trial
Chris Bryden and Georgia Whiting, barristers at 4 King’s Bench Walk, examine case law surrounding the role of expert witnesses, which suggests a worrying trend towards a loosening of the established principles of how experts should behave, and are instructed.

Contracts
Change the Precedent, Change the World
Jane Hughes and Laura Lintott of Trowers & Hamlins LLP argue that ‘green thinking’ means future thinking. In this analysis of the green contract clauses that are emerging to support the climate change battle they advise on practical and legal issues facing those who want to ‘go green’.

Insurance
Long tail liability
Our insurance expert John D Wright of JD Risk Associates looks at the problems associated with the ‘long tail’ feature of liability insurance policies. Converting policies to a claims made basis would avoid the long tail liability problem but there are problems associated with such a change.

Alternative dispute resolution
Negotiated Dispute Resolution
Our latest Alternative Dispute Resolution (ADR) series article from Tracey Summerell of Dentons UK and Middle East LLP examines the reasons for now calling ADR Negotiated Dispute Resolution.

Construction Law: March 2022

Editor’s comment
Is PFI about to be reborn?
In the absence of any obvious alternative, the once discredited Private Finance Initiative looks like being revived to support ambitious infrastructure investment plans, Editor Nick Barrett says.

News
This month’s news roundup includes a warning that projects could be impacted by escalating insolvencies which are anticipated over the coming year, an update on the Grenfell Tower Inquiry and details of a lawsuit brought by the Official Receiver against collapsed contractor Carillion’s auditor, KPMG.

Legal terms explained
Alice Pickthall of Herbert Smith Freehills LLP explains penalty clauses.

Guest editor
What construction lawyers will be talking about for the rest of 2022
Guest Editors Will Buckby and Tom Howell of Beale & Company Solicitors LLP ask what the ‘new normal’ will look like for construction. The industry has shown great resilience during the past two Covid years but should continue to expect the unexpected, they warn.

Legislation state of play table
Our regular update of the progress of legislation and new regulations as it passes through the legislative process, prepared by Construction Law staff writers. News editor Steve Dale provides a commentary on a key issue.

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 look at a dispute between a houseowner and a builder that highlights the importance of parties ensuring strict compliance with the payment and termination provisions in contracts; and another where the decision stands as a reminder of the importance of having a clear contract in writing and for careful and timely invoicing.

Analysis
The bill for cladding scandal to hit pockets hard
The entire construction supply chain is in the sights of a Housing Secretary determined to make them pay for righting the cladding scandal that caused 72 deaths in the Grenfell disaster. Nick Barrett reports that the measures Michael Gove is considering could backfire if they drive companies into liquidation.

CL guides
Liquidated Damage
The latest in our Construction Law Guides series comes from Jennifer Price-Thomas of DLA Piper who explains how liquidated damages work.

Contracts
The prevention principle
Lucinda Hill and James Doe of HSF examine the prevention principle which although seldom invoked due to the extensive use of extension of time provisions in construction contracts, could be affected by developments in offshore and shipbuilding.

Technology
Protocols aim to reduce Golden Thread uncertainty
Forthcoming legislation will require enhanced attention to information management along the construction supply chain, a ‘Golden Thread’ of information. Andrew Croft of Beale & Company Solicitors, May Winfield of consulting engineer Buro Happold and Simon Lewis of Womble Bond Dickinson report on two new information protocols designed to reduce related legal uncertainty.

Frameworks
New Cabinet Office review of frameworks
Andrew Croft and Kevin Henderson of Beale & Company Solicitors LLP cast their eye over the recently published Cabinet Office commissioned review of construction frameworks that advised how they could achieve a ‘Gold Standard’. Employers might use it to push harder for an unfair risk-share with the project delivery team, they caution.

Procurement
Public procurement must change to support climate change battle
Public sector suppliers are aware that they need to adapt to support the climate change effort, but the public sector itself has to change procurement practices if their efforts are to result in tendering success, warn David Hansom and Hannah Chapelhow of Clyde & Co.

Insurance
Employer’s non-negligence insurance
Our insurance expert John D Wright of JD Risk Associates highlights some issues with Employer’s non-negligence insurance, warning that as minor works can result in major damage to adjoining properties and care must be taken to select an appropriate indemnity limit.

Alternative dispute resolution
Arbitration Act’s 25th anniversary: an opportunity for wider reform
In our latest Alternative Dispute Resolution series article Tracey Summerell of Dentons UK and Middle East LLP argues that the current Arbitration Act review is an opportunity ask how the Act could promote fairness, equality, transparency and access to justice as well as legal and technical excellence.

Construction Law: January/February 2022

Editor’s comment
Procurement opportunity must be grasped
Editor Nick Barrett says that thanks to several recent procurement related reports construction has been offered a rare opportunity to make significant improvement.

News
This month’s news roundup includes a warning from lawyers that new procurement rules could be open to abuse, an update on the Grenfell Tower Inquiry and details of a large fine received by Balfour Beatty’s American subsidiary for defrauding the US military.

Legal terms explained
Stephanie Lamb and Elissa Patel of Herbert Smith Freehills LLP explain how liability caps and exclusion clauses work.

Guest editor
Constructing the Gold Standard – how to fulfil the potential of frameworks
Professor David Mosey, Centre of Construction Law and Dispute Resolution, King’s College London, author of the recently published ‘Gold Standard’ review of construction frameworks, explains how they could provide impetus to drive a range of benefits including a more profitable industry.

Legislation state of play table
Our regular update of the progress of legislation and new regulations as it passes through the legislative process, prepared by Construction Law staff writers. News editor Steve Dale provides a commentary on a key issue.

Reports from the courts
Our regular round up of the cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who look at a dispute over whether a client had verbally agreed to waive liquidated damages; and a rejection of a claim to strike out an action that confirms the high threshold the courts set for such claims.

Analysis
How Building Information Modelling can strengthen your legal strategy
The use of Building Information Modelling (BIM) is on the rise but Stewart Bailey, director of property technology specialist Virtual Viewing, warns that incorrect implementation can increase construction costs, cause delays and carry legal consequences.

CL guides
Design Liability
Our latest Guides series article from Ross Galbraith of DLA Piper considers design liability of both contractors and consultants.

Annual review of 2021
Covid related disputes to continue in 2022
In this review of 2021, Herbert Smith Freehills LLP highlight some of the key developments of the past year, how issues faced by the construction industry have been considered by the courts and what we may expect looking ahead to 2022.

Sustainability featured in Scottish construction law’s year
Shona Frame and Sophie Malley of CMS review some important and wide-ranging developments that took place in Scottish construction law in 2021. Fittingly, as the COP26 event was held in Glasgow, sustainability was a feature of the year, with, for example, consultation launched on energy standards contained in the Building (Scotland) Regulations 2004.

Technology
The cyber threat to construction, engineering and energy
Construction, energy and engineering companies have lagged others in taking steps to protect themselves from the growing number of cyber-attacks. Vijay K Bange and Chris Recker of Duane Morris warn that failing to take preventive measures can lead to expensive litigation.

FIDIC
The bare bones of design and construction under FIDIC
In the third of our series on FIDIC forms Robert Meakin and Dominika Wlodarska of Clyde & Co make a close reading of the opening clauses of the contracts in the 2017 suite.

Insurance
Aggregation or aggravation?
Our insurance expert John D Wright of JD Risk Associates explains why the lack of standard wordings relating to aggregation clauses in insurance contracts means that the high level of litigation over their interpretation is likely to continue.

Alternative dispute resolution
Pre-Action Protocol reforms
In our latest alternative dispute resolution series article Tracey Summerell and Akin Akinbode of Dentons UK and Middle East LLP review proposed Civil Justice Council reforms that will impact on pre action protocols.