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.

Construction Law: December 2020

Editor’s comment
Early estimates only part of the procurement problem
Editor Nick Barrett argues that a new National Audit Office report provides backing for industry wide calls for more collaboration, transparency and honesty to improve the UK’s major procurement problems.

News
This month’s news roundup includes details of a National Audit Office report highlighting key lessons for improved major project delivery; advice on top actions for the sector ahead of the end of the Brexit transition period; and an update on financial conduct investigations into former Carillion directors.

Legal terms explained
Michael Sharp and Adya Garg of Herbert Smith Freehills explain what is meant by global claims in construction disputes

Guest editor
Virtual hearings: inflammatory markers in favour of in-person hearings
Guest Editor Hamish Lal of Akin Gump Strauss Hauer & Feld takes issue with the growing view that ‘virtual hearings’ are always an adequate alternative to an in-person hearing. Sometimes an in-person hearing should take precedence, he argues.

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. Akin Akinbode and Tracey Summerell ask what happens to UK law after 31 December 2020?

Reports from the courts
Our regular review of the court designs of most relevance to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, fincluding a case that will be of growing interest as insolvencies rise; and another that is a stark reminder to construction companies of the importance of conducting thorough due diligence on their suppliers and their tax arrangements.

Book Review
Forensic approach lays bare Carillion scandal
Leading dispute resolution specialist Amanda Bucklow examines a book on the Carillion collapse, timely published as the Financial Conduct Authority accuses former directors of the company of acting recklessly and in a misleading way.

CL guides
Good faith
In our latest Construction Law Guides series Clare Rushton of DLA Piper examines what is meant by the concept of good faith. The views of the courts are still evolving, she explains.

Technology
The contractual approach to BIM and Common Data Environments
The use of Building Information Modelling is becoming standard on projects and Common Data Environments (CDEs) are increasingly being used to promote more efficient information sharing. Kathryn Willis and Andrew Croft of Beale & Company Solicitors LLP urge caution in hosting CDEs.

Contracts
The prevention principle
Lucinda Hill and James Doe of Herbert Smith Freehills LLP consider what the ‘prevention principle’ is and how it has developed, exploring how, and to what extent the principle applies to both construction and shipbuilding contracts.

Litigation
Poor Performance in Energy from Waste Plants
Cecily Davis of Fieldfisher looks at how contracts address the issues of time and quality following some high profile disputes in the energy from waste and data centre sectors.

Outlook
Challenging times ahead for construction
Jonathan Douglas, Nick Pinder and Mariya Rankin of Eversheds Sutherland take a look ahead to the legal, political and economic factors likely to shape construction in 2021. Times will be challenging, they caution, but there will be areas of growth.

Insurance
High Court test case – not conclusive
Insurance expert John D Wright of JD Risk Associates analyses recent High Court decisions that clarify some legal issues of interest to those hoping for cover from the impact of Covid-19 on their ability to fulfil contracts. Some policyholders can take some comfort from the decisions, he says.

Alternative dispute resolution
Increasing diversity in dispute resolution
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East LLP argues that increasing gender diversity could benefit all dispute resolution processes.

Construction Law November 2020

Editor’s comment
Lowest price obsession hasn’t gone away
The Cabinet Office has announced new measures to deliver social value through public procurement in ‘a new Policy Note. Editor Nick Barrett says it is time for stronger commitment from government that chasing lowest prices is no longer the priority.

News
This month’s news roundup highlights late payment as the top issue facing suppliers to public bodies. It also includes detail on a new building safety competence regime and international arbitration rules set to come into force next year.

Legal terms explained
Emma Kurtovich and Matthew Procter of Herbert Smith Freehills explain what is meant by termination.

Guest editor
Design life obligations: hidden liability traps?
Guest Editors Andrew Croft and Kevin Henderson of Beale & Company Solicitors LLP warn of potential hidden liability traps with the growing use of design life obligations in contracts.

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 comments on a new Government Procurement Policy Note that promotes social value in bid assessments.

Reports from the courts
Our regular review of the court designs of most relevance to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, focussing on a case which serves as a reminder of the courts’ approach to strike-out and summary judgment applications; and another that highlights the courts’ robust support of the ‘pay now, argue later’ principle of the Construction Act.

Analysis
Grenfell tragedy driving procurement change
The Grenfell Tower tragedy on 14 June 2017 in which 72 people lost their lives has set in motion what will be fundamental changes in the regulatory regime surrounding building regulations in the UK. Nick Barrett looks at the key procurement lessons that are emerging from the public inquiry, which could result in equally fundamental changes to how suppliers of construction services are appointed.

CL guides
Variations
In our latest Construction Law Guide series article from DLA Piper Tamara Preuss describes how the often tricky issues surrounding variations are treated under contracts. Not all instructions give rise to a variation, she warns.

Contracts
Intra-EU Investment Treaties – do they still provide protection?
Vijay Bange and Matthew Friedlander of Duane Morris explain why Bilateral Investment Treaties are important and how moves within the European Union to end them threaten key protections that contractors and others might think they enjoy. Crucial ‘Sunset Clauses’ could fail to be honoured.

Insolvency
Digital Early Warning Systems reduce insolvency risk
South African based project organisational behaviour specialist Anton Krause and UK construction risk management consultant Stephen Woodward describe how adopting digital early warning systems can help avoid situations like the Carillion scandal arising.

Collaboration
Risk allocation in the face of Covid-19
Lucy Chadwick and Kathryn Patel of Eversheds Sutherland consider the Construction Leadership Council’s paper ‘Covid-19: Contractual Disputes & Collaboration Guidance’, offering practical advice to the paper’s recommendations when drafting construction contacts.

Covid-19
Some Covid-19 impacts are here for good
Giovanni Di Folco of Techno Engineering & Associates Group and Laura Lintott of Dentons UK and Middle East LLP compare their experiences of remote working since March 2020 and the effect of the Covid-19 pandemic on dispute resolution procedures.

Insurance
Financial loss claims
Insurance expert John D Wright of JD Risk Associates explains financial loss claims, focussing on why Covid-19 is likely to throw up more litigation in this area. Understanding is not helped by insurers and lawyers using different terms to describe the same risks.

Alternative dispute resolution
Preparation is the key to success in giving evidence remotely
In our latest ADR series article Tracey Summerell of Dentons UK and Middle East LLP considers new guidance for experts and instructing lawyers on how to prepare and give evidence in virtual and remote hearings.

Construction Law: October 2020

Editor’s comment
A persuasive influence worth holding on to?
Editor Nick Barrett says a recent decision of Scotland’s Inner House, which will be persuasive but not binding elsewhere in the UK, highlights something that could be lost if apparently growing support for Scottish independence results in the break up of the UK.

News
Our regular news round up features changes to mediation and arbitration rules at the London Court of International Arbitration; government moves to give the effect of law to Covid related guidance; and a call for open book rather than fixed price contracting from Build UK.

Legal terms explained
Olivia Liang of Herbert Smith Freehills LLP explains what is meant by Quantum Meruit.

Guest editor
How to save money in disputes and/or arbitration
Guest Editor Iain Wishart draws on his long experience of managing major construction projects worldwide to advise how best to avoid disputes arising and ending up in lengthy arbitration.

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. A commentary from Tracey Summerell examines the Draft Building Safety Bill.

Reports from the courts
Our regular round up of court decisions of the most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, focussing on one that highlights the importance of defining design life requirements within contracts; and a Supreme Court ruling that means insolvency practitioners can use adjudication to pursue claims .

Analysis
New edition playbook sets new rules for the outsourcing game
The Cabinet Office has published a second edition of its Outsourcing Playbook, a key part of government’s response to the seemingly never ending procession of disasters that have bedevilled the UK procurement scene for many years. Nick Barrett highlights the key changes.

CL guides
Project Bank Accounts
The latest in our series of guides to key construction law topics comes from Ross Campbell of DLA Piper who examines Project Bank Accounts.

Legislation
Building Safety Bill ushers in new regulatory era
Rebecca Rees and Amanda Stubbs of Trowers & Hamlins analyse the draft Building Safety Bill, which calls for total regulatory reform of the regime for ‘higher risk’ buildings, and is now out for consultation. The draft should be studied carefully and preparations made now to prepare for the new legislative landscape.

Arbitration
Correction of Arbitral Awards
Vijay Bange and Tanya Chadha of Duane Morris report on an arbitration claim considered by the High Court which supported a tribunal’s decision to amend its original award. Successful challenges to awards made by arbitration under ICC rules are unlikely to succeed.

Adjudication
Adjudications brought by insolvent companies – An exercise in (f)utility?
Clear evidence that the Supreme Court strongly supports alternative methods of dispute resolution, particularly adjudication, comes from a landmark decision in a case involving a company in liquidation, report Marion Smith QC, David Sawtell and Philippe Kuhn of 39 Essex Chambers. Some questions remain unanswered however.

Collaboration
Decarbonisation demands collaboration
Dr. Roxana Vornicu and Dr. Paolo Ettore Giana of King’s College London Centre for Construction Law and Dispute Resolution argue that the industry’s drive towards decarbonisation can only succeed if collaboration is adopted along with digital technologies.

Insurance
The reinsurance market
Insurance expert John D Wright of JD Risk Associates explains the role of the reinsurance market in insuring construction risks. Reinsurance is especially important when the market faces catastrophic risk, like the Covid 19 pandemic.

Alternative dispute resolution
Talk before suspending for non payment
Our latest Alternative Dispute Resolution series article from Gurbinder Grewal of Dentons UK and Middle East LLP looks at the impact of the new Insolvency Act. Caution is urged before suspending work for non payment.

Construction Law: August/September 2020

Editor’s comment
Multi-challenges forcing pace on procurement reform
Amid signs that procurement is at last rising up the political agenda, Editor Nick Barrett reports that increasing pressures are forcing the pace of change. Using tribunals instead of the High Court for challenges to contract awards is one change that has been suggested.

News
This month’s news roundup features details of the new draft Building Safety Bill, hopes for the wider adoption of Project Bank Accounts following developments on High Speed 2 and guidance on future proofing construction contracts in light of Covid-19.

Legal terms explained
Michael Sharp of Herbert Smith Freehills LLP explains virtual signing and electronic signing.

Guest editor
Connectivity and collaboration to keep construction safe
Guest Editors Kathryn Noble, Amanda Stubbs, and Charlotte Clayson of Trowers & Hamlins LLP say construction could benefit from Covid-19’s impact on adoption of digital technology. As well as fostering innovation, new legal issues will be created, they warn.

Legislation state of play table
Dentons UK and Middle East LLP provide our regular round up of legislation affecting the UK as it passes through the legislative process. Tracey Summerell outlines the implications of the The Corporate Insolvency and Governance Act 2020.

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, focusing on one that underlines the courts’ reluctance to support challenges to the jurisdiction of adjudicators; and another that reinforces the position that ‘the prevention principle is not an overriding rule of public or legal policy’ and that it is possible to contract out of its application.

Book review
High praise for invaluable Construction Law reference book
Professor David Mosey, Director, King’s College London Centre of Construction Law and Dispute Resolution, reviews the latest edition of Julian Bailey’s book Construction Law which is praised for its comprehensive coverage, scholarship and good value.

CL guides
Alliance Contracting
Our latest CL Guide is from Rachel Chaplin of DLA Piper and explains what Alliance Contracting means and how it works. Changes in approach are needed to make it successful.

Insolvency
Changes to the UK Insolvency Regime and the Impact on Supply Contracts
Vijay Bange and Candice Light of Duane Morris describe how the new insolvency legislation making it difficult or impossible for suppliers to terminate contracts where a company has entered into a defined insolvency procedure will work. Far reaching impacts can be expected.

Disputes
How are construction disputes evolving?
The findings of two major surveys reveal a changing pattern of disputes in construction, as Amy Roberts, Adrian Bell and Shona Frame of CMS Cameron McKenna Nabarro Olswang LLP explain. The impact of Covid-19 and Brexit are still to be felt, they warn.

Fire safety
Form EWS1 – a better solution needs to be found
Will Buckby and Ian Masser of Beale & Co warn consultants that they should avoid taking on work under Form EWS1 – designed to provide assurance that a high rise building is fire safety compliant – which imposes unlimited liability on them. Professional indemnity insurance could be compromised by its use, they advise.

Planning
Measures to help the progress of DCO projects
Infrastructure planning law specialist Angus Walker of BDB Pitmans says keeping planning and consenting of nationally significant projects going will help reduce the depth of the coming recession as well as speeding up the recovery. There are practical steps to be taken that will help.

Insurance
Costs – the hidden element
Insurance expert John D Wright of JD Risk Associates looks at the extent to which insurance policies offer cover for costs, such as legal costs, in addition to losses suffered as a result of an insured event occurring. Policies should be read with care, he warns.

Alternative dispute resolution
Make mediation compulsory?
In the latest of our alternative dispute resolution (ADR) series, Tracey Summerell of Dentons UK and Middle East LLP asks whether it is time for mediation to be made compulsory.