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.

Construction Law: July 2020

Editor’s comment
Straws worth clutching at
The Covid-19 pandemic has darkened the economic outlook but Editor Nick Barrett notes that forecasters are seeing light at the end of the tunnel. A sea change in construction productivity is now needed but that needs a sea change in the industry’s mindset, say commentators.

News
Our monthly news roundup includes a Supreme Court ruling which has implications for adjudications in construction, a warning that plummeting productivity on sites will lead to more disputes, and details of a new culpable homicide bill introduced to the Scottish Parliament.

Legal terms explained
Lucinda Hill and Kate O’Callaghan of Herbert Smith Freehills LLP explain the meaning of force majeure.

Guest editor
Hard cases make bad contracts
Guest Editor Karen Kirkham of BDB Pitmans LLP says allowing rare and unforeseen events to shape contracts can create excessive risk for contractors which employers will have to pay for. Crisis driven amendments miss targets and can make matters worse, she argues.

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 comments on calls for construction to support the move towards ‘Digital Britain’.

Reports from the courts
Our regular round up of the court decisions of most relevance to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who focus on a case confirming that an adjudicator’s award or court judgment is needed before an established or ascertained bond can be called; and another which, although not a construction case, highlights the importance of clear drafting of exclusion clauses.

Analysis
Storm Covid blows through the wind industry
How Covid-19 is impacting on one construction market – the wind industry – is analysed by Edward Stewart, Natalie Wardle, Colleen Galbraith and Kimberly Roberts of Bryan Cave Leighton Paisner, who focus on what reliefs may be available under FIDIC Silver Book 1999 edition.

CL guides
Engineer, Procure and Construct contracts
In our latest CL Guides series article Harriet Farrant from DLA Piper explains how Engineer, Procure and Construct contracts work.

Delay
Delay & Disruption from Covid-19
Many companies will be relying on force majeure clauses to bail them out of Covid-19 induced problems, but some parties to contracts will be left ‘in a hole’, unable to claim reliefs or terminate onerous contracts warns Stuart Jordan of Baker Botts.

Change in law
Covid-19 and Change in Law
Contractors throughout the UK are grappling with the delays, costs and disruption caused by Covid-1 and looking to force majeure for relief. Nick Viljoen of HFW suggests that one less considered avenue for relief may be to claim that new Covid-19 Standard Operating Procedures amount to either a Change in Law or a variation.

Technology
Covid – A Catalyst for Change?
Duncan Turner and Amy Roberts of CMS Cameron McKenna Nabarro Olswang LLP examine how new technologies could help the industry grapple with the immediate problems associated with a return to work post the Covid-19 shutdown. New technologies can throw up new legal challenges as well, they warn.

Contract termination
To terminate or not to terminate, that is the question
Chris Bryden and Georgia Whiting of 4 King’s Bench Walk explain how common law can support termination of a contract that does not have an express termination clause. However, there are risks associated with using the repudiatory breach strategy, they warn.

Insurance
Covid-19 – The Insurance Implications
Insurance expert John D Wright of JD Risk Associates outlines the insurance implications of Covid-19, warning that there may not be a lot the insurance industry can do to alleviate the financial pain inflicted by the pandemic. For the future, a pooling scheme might have to be launched and government backing will be essential.

Alternative dispute resolution
Good behaviour: going the extra mile
In our latest alternative dispute resolution (ADR) series, Tracey Summerell of Dentons UK and Middle East LLP considers the government’s call for good behaviour by parties to construction contracts and what that means in practice for those battling the economic effects of the Covid-19 pandemic.

Construction Law: June 2020

Editor’s comment
Delay and disruption battles loom
As the industry emerges from lockdown Editor Nick Barrett reports that strong advice is being given about an expected outbreak of disputes over delay and disruption costs. Expect future contracts to reflect the new reality, he says.

News
This month’s news roundup focuses on COVID-19 developments including plans to get non essential works back on site in Scotland, the new Corporate Insolvency & Governance Bill introduced to Parliament by the UK Government, and a report from Arcadis which recommends new approaches to contracts in light of the crisis.

Legal terms explained
Harith Canna of Herbert Smith Freehills LLP explains exclusive remedy clauses.

Guest editor
No Construction Act reform in sight after consultation
Guest Editor Nathan McBride of DLA Piper finds interesting insights in the government’s response to its Construction Act consultation, but it’s a case of watch this space for indications of how legislation might develop.

Legislation state of play table
Our regular round up of legislation affecting construction as it passes through the UK legislative process comes from Dentons UK and Middle East LLP. Esther McDermott and Tracey Summerell comment on COVID-19 and its effect on combating modern slavery.

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 focusing on a case which supports an adjudicator’s ability to grant an extension to the timetable; and one providing a reminder of the importance of clearly drafted, unambiguous contract provisions.

Analysis
Climate change – a wind of change for construction?
Vijay Bange of Duane Morris warns that an increasing focus on climate change when pursuing permission for major infrastructure developments might run counter to post COVID-19 pandemic efforts to reflect the world economy.

CL guides
Insuring a construction project
In our latest Construction Law Guide Jessica Tierney of DLA Piper explains the main types of insurance cover used in construction.

Litigation funding
Litigation funding – preserving cash in uncertain times
Construction disputes, particularly over claims and termination, are expected to increase as the costs of COVID-19 begin to bite. Glenn Newberry and Jessica Neuberger of Eversheds Sutherland explain the role that the different types of litigation funding could play.

Disputes
An open and shut case: construction sites in England
Nick Viljoen of HFW explains why parties need to be aware of their contractual options with delays, disruption and additional costs expected as sites re-open using COVID-19 Standard Operating Procedures. Not all costs will be easy to recover, he warns.

Court procedure
Technology keeps the court wheels turning
Barristers Chris Bryden and Georgia Whiting of 4 King’s Bench Walk examine the impact of changes made to court procedure in the COVID-19 age. Early thoughts that complex construction cases would be subject to lengthy adjournment have been laid to rest as judges prove happy to expand the use of technology.

Contracts
Supporting modern methods of construction in housebuilding
Katie Saunders of Trowers & Hamlins LLP analyses whether existing procurement practices and contract forms are up to the task of supporting adoption of modern methods of construction in housebuilding.

Insurance
Underinsurance threatens business survival
Insurance expert John D Wright of JD Risk Associates warns that underinsuring is a widespread and dangerous practice, as many companies are currently finding out when they try to claim for business interruption. Other key types of cover are also neglected, he warns.

Alternative dispute resolution
Mind your “Ps” & “Cs” to avoid disputes
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East LLP suggests successful conflict avoidance will also require a change in mindset for some.

Construction Law: May 2020

Editor’s comment
The paper trail to survival
Amid conflicting advice on whether to open sites, construction companies are advised to maintain their own records to be able to prove what guidance they received about safe working during the pandemic and that they have acted properly, in the event of health and safety prosecutions or claims from workers or their families.

News
This month’s news roundup includes concern that construction firms have seen pandemic cover removed from their policies, details of a landmark case which saw the TCC reject a contractor’s attempt to halt an adjudication due to the pandemic, and market analysis stating that recently awarded contracts have been put on hold.

Legal terms explained
Karan Talwar of Herbert Smith Freehills LLP explains the principle of set-off.

Guest editor
Taxing times for construction
New tax rules for self employed contractors that place new burdens on end-users of their services have been put off until 2021, but construction faces major changes in its ability to source skills only as and when needed. Guest Editors Vijay Bange and Nic Hart of Duane Morris say a culling process may already be underway.

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 looks at a dispute underlining that express dispute resolution clauses should be included in all contracts; and another that highlights the difference between a negligent act and a negligent failure to act.

Legislation state of play table
This table, prepared by Dentons UK and Middle East LLP, provides a regularly amended guide to new and proposed legislation that will affect the construction industry. Tracey Summerell and Esther McDermott comment on government response to the Construction Act consultation.

Alternative dispute resolution
Engage in settlement talks or pay the price
In our latest Alternative Dispute Resolution series article Tracey Summerell and Sonia Vilar of Dentons UK and Middle East LLP consider a case stressing that even parties with a strong belief in their case must engage in settlement discussions, including ADR, or risks costs sanctions.

CL guides
Force majeure, frustration and construction contracts
Ross Galbraith of DLA Piper provides the latest in our CL Guides series, with a topical look at how force majeure and frustration can impact on construction contracts.

Industry reform
Why are there so many insolvencies in construction?
Charles O’Neill of Contract Dynamics Consulting and highly experienced delivery leader Ian Williams examine steps that clients and contractors can take in the early stages of projects to influence success, reviewing current bidding and contracting processes, and making recommendations for change.

COVID-19
Life after lockdown
David Cordery of Trowers & Hamlins LLP looks ahead to what the post lockdown construction world might look like. The long term impact of Covid-19 could be to hasten adoption of new technologies and ways of working, he suggests.

Litigation
Henderson principle revisited
Vijay Bange and Tanya Chadha of Duane Morris examine a recent court decision shedding light on whether parties have to bring all of their claims, or defences, at once. The case provides a test of the long established Henderson principle.

Contracts
Standard Forms of Contract: FIDIC vs NEC
Rebecca Shorter of White & Case LLP examines the approaches taken to contract management by the FIDIC and NEC contract suites. Recent editions show more sophisticated management of construction and engineering projects, and adoption of measures to increase their appeal as standard forms.

Insurance
The intention of the parties must prevail
Insurance expert John D Wright of JD Risk Associates explains that the courts will make decisions based on what parties in disputes over insurance policy interpretation intended, so obvious errors in drafting can be rectified.

Construction Law: April 2020

Editor’s comment
Coronavirus confusion reigns
To close or not to close sites in the face of a lethal, worldwide pandemic – it is a straightforward enough question that Editor Nick Barrett says governments should get their collaborative act together on and answer properly.

News 
News this month includes a roundup of developments in the construction sector which respond to the coronavirus pandemic, as well as calls for more cohesive thinking on infrastructure following the Government’s Budget announcement.

Legal terms explained
Olivia Liang of Herbert Smith Freehills LLP explains Set-off.

Guest editor
Arbitrating African infrastructure projects
Guest Editor Kemi Wood of Herbert Smith Freehills LLP examines arbitrations arising from African infrastructure projects, where disputes are common. An English High Court case provides a reminder that even when seated in London international arbitration is not an absolute salve for the risks associated with Africa related arbitrations.

Legislation state of play table
Our regular round up of legislation affecting construction as it passes through the UK legislative process comes from Dentons UK and Middle East LLP. Helen Bowdren and Tessa Birch comment on the environment bill.

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 on a PFI project concerning delayed final payments; and one involving Crossrail subcontractors and sub-sub contractors highlighting the need for clarity in wording regarding title in goods.

Analysis
BIM, offsite manufacture and the future of the construction industry
Paolo Ettore Giana and Dr Roxana Vornicu, Research Associates at the King’s College London, Centre for Construction Law and Dispute Resolution, report from a London conference that heard modern methods of construction demand modern approaches to procurement and contracting.

CL guides
Limitation on liability
Claire Turnbull and Kristi Boyes of DLA Piper present the latest in our Guides series, on limitation on liability.

Force Majeure
Coronavirus and construction contracts
Melissa Laurie, Chris Dickson and Jane Fender-Allison of CMS explain the legal background to what happens in the event of Covid-19 causing disruption to the supply chain, scrutinising several key forms of force majeure provisions.

Time
Time bar provisions in standard form construction contracts
James Doe
and Elissa Patel of Herbert Smith Freehills analyse the issue of time bar provisions in standard form contracts. Failure to familiarise themselves with the specific notification requirements of the contracts could be very costly for claiming parties, they warn.

Disputes
Truth is rarely pure, and never simple
In the second of two articles on the causes of what he has found to be the main causes of disputes quantity surveyor Iain Wishart focusses on the contribution of expert witnesses, a role he has himself played. An erosion of the independence of some experts has been noticeable, he says.

Bonds
Bonds coming under scrutiny
Cecily Davis of Fieldfisher says bonds will be scrutinised more closely than ever in the Covid-19 world and analyses the implications of a court case which is a useful reminder of the distinction between on demand and conditional bonds.

Insurance
Increased scrutiny by insurers
Our expert insurance guide John D Wright of JD Risk Associates warns that following recent catastrophes insurers are demanding more detailed information before offering cover. Many types of cladding are coming under intense scrutiny post-Grenfell.

Alternative dispute resolution
Resolving disputes with video
Coronavirus is spreading and widespread disruption seems inevitable, but embracing technology such as video conferencing (VC) might provide a solution for some involved in time sensitive alternative dispute resolution as Tracey Summerall of Dentons LLP explains.

Construction Law – March 2020

Editor’s comment
Grenfell reform may extend to procurement
Big changes in the fire safety regime might usher in changes in procurement practices as well, Editor Nick Barrett reports.

News
Our regular news round up reports on a TCC Disclosure pilot scheme; the restart of the Grenfell inquiry; and further delays to hospitals that were being built by Carillion.

Legal terms explained
Harith Canna of Herbert Smith Freehills LLP explains Aliance Contracting.

Guest editor
MMC and procurement
Guest Editor Professor David Mosey, King’s College London, argues that adoption of long-term procurement strategies and collaborative call-off contracts arguably offers the best way to deliver successful modern methods of construction investments.

Legislation state of play table
Our regular round up of legislation affecting construction as it passes through the UK legislative process comes from Dentons UK and Middle East LLP. Akin Akinbode and Tessa Birch comment on looming UK tax changes.

Reports from the courts
Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP present our regular round up of the court cases of most interest to construction, one of which stands as warning against using Part 8 claims as appeals against adjudication decisions; and another that cautions that payments into court are not equivalent to payment bonds.

Analysis
VAT changes threaten small firm survival
Tax policy expert Brian Palmer of AAT warns that changes in the way payments are made to VAT registered subcontractors – making main contractors liable for payments – could drive smaller firms out of business.

CL guides
CIS and the VAT reverse charge
In our latest Guides series article Tom Manley and Lisa O’Gorman of DLA Piper examine the implications of looming changes in construction tax legislation.

Immigration
The post Brexit immigration landscape
Gillian McKearney, head of UK Immigration at Fieldfisher, warns that retaining European Union national employees will be key to surviving in the the post Brexit immigration landscape. Employers must be proactive, she advises.

Adjudication
Adjudication strategy: how can I maximise my prospects?
Oli Macrae of Foot Anstey LLP advises on how to take an effective approach to developing a strategy for an adjudication. Strategic advantages can be gained through adopting appropriate tactics.

Insolvency
The corporate veil in a construction context
Barristers Chris Bryden and Georgia Whiting, Chambers of Timothy Raggatt QC, 4 King’s Bench Walk, explain why limited liability – shielding directors of failed companies behind the corporate veil, while exposing others to suffering – is a necessary double sided coin.

Disputes
The importance of being earnest
In the first of a two part article quantity surveyor Iain Wishart gives a personal view of what he regards as the root cause of construction disputes. The unusual commercial nature of construction contracts is a key issue.

Insurance
Stormy waters for policyholders
Insurance expert John D Wright of JD Risk Associates examines clauses relating to storm and flood damage in policies. Insurers try to impose their own definitions of terms and the courts do not always support contractors seeking immunity under joint names clauses.

Alternative dispute resolution
The ramifications of amending dispute resolution clauses
In our latest Alternative Dispute Resolution series article Tracey Summerell of Dentons LLP urges caution when amending dispute resolution clauses.

Construction Law January/February 2020

Editor’s comment
High speed vanity?
Editor Nick Barrett asks in the wake of yet another report critical of HS2, whether the UK is in danger of buying another expensive lesson in how not to procure infrastructure, which it will ignore like all the others.

News
Our regular construction law and procurement news round up includes details of programme and cost risks to High Speed 2 as well as two hospitals that were being built by Carillion before its collapse. It has also been revealed that the Health & Safety Executive will oversee implementation of the Government’s new building safety regulations.

Legal terms explained
Elissa Patel and Michael Sharp of Herbert Smith Freehills LLP explain cost reinbursable contracts.

Guest editor
Judges tightening up on witness evidence
Guest Editors Akin Akinbode and Tracey Summerell of Dentons LLP consider the recent Witness Evidence Working Group’s recommendations and why they are needed. A changed approach might be needed, they say.

Legislation state of play table
Our regular update of the progress of legislation of interest to construction passing through the UK and EC legislative systems comes from Dentons UK and Middle East LLP; along with a commentary on the industry’s mental health campaigns.

Reports from the courts
In our round up of cases of most interest to construction Andrew Croft and Benjamin Spannuth of Beale & Co Solicitors LLP report on a decision that confirms the importance of expressly including an Act-compliant payment mechanism and an express right to suspend in the event of non-payment in every ‘hybrid’ contract; and another that warns replacement contractors not to be reckless in how they regard pre existing disputes.

Conference report
Collaborating to manage risk and delivery
Kelachi Amadi-Echendu of Resolex reports from November’s Alliance Steering Group conference in London where the focus was on how collaborative procurement can deliver value to complex projects. Delegates heard how the government is working with industry to transform the construction process.

CL guides
Performance security
The latest in our series of Guides to key construction law topics, on performance security, comes from Victoria Ball and Jaskiran Bansal of DLA Piper.

Review of the year 2019
Judicial spotlight on some old favourites
Ryan Musikant, Earle Brady and Cecily Davis of Freshfields look back at what 2019 brought for construction law, with important developments relating to areas like concurrency, insurance policy wording, practical completion, procurement and liquidated damages.

Review of the year in Scotland
Major impacts might be yet to come
Shona Frame, Anita Crozier and Melissa Laurie of CMS report on how key developments of the year for construction law in Scotland. The impact of some of these developments will be felt during 2020 and beyond, they predict.

Grenfell inquiry
Grenfell Phase 1 a portent of things to come
Barristers Philip Bambagiotti and Nicholas Kaplan of 3 Paper Buildings (3PB) warn that construction will come under a harsher spotlight than it already has when Phase 2 of the Grenfell Tower inquiry gets underway. Public pressure might lead to changes in the law regarding tortious claims for pure economic losses.

Contracts
Force Majeure and causation – new guidance from the English courts
Emma Schaafsma and Emily Blanshard of Herbert Smith Freehills LLP analyse recent case law with implications for force majeure and consider its possible impact on construction contracts. Careful drafting will be needed to avoid ambiguity in force majeure clauses.

Insurance
PI Notification Issues Persist
Insurance expert John D Wright of JD Risk Associates reviews recent case law associated with Professional Indemnity cover for construction professionals.

Alternative dispute resolution
Cooperation promotes mediation
In our latest ADR series article Roger Levitt follows up one on emotional intelligence in the previous issue of CL, sharing some of the processes he uses to encourage parties to prepare for mediation using EQ.

Construction Law: December 2019

Editor’s comment
If not private finance, then what?
The consultation is still underway for a replacement for the UK’s discredited private financing of infrastructure model. Editor Nick Barrett says news from the health service might confirm that PFI is finished, but warns that it might have to reappear in a new form.

News
Our latest news roundup features new statistics showing a drop in prosecutions for health and safety offences, details of a dispute over the late completion of a dual carriageway upgrade in Cornwall and concern that the government’s new Construction Framework will not address late payment.

Legal terms explained
Michael Sharpof Herbert Smith Freehills LLP explains the key features of Engineering, Procurement and Construction (EPC) contracts.

Guest editor
Infrastructure isn’t just for Christmas – or elections
Guest editor Cecily Davis of Fieldfisher looks at the current upsurge in political promises to boost infrastructure investment. The construction industry may be up to the challenge of delivering the projects, but can the politicians deliver on their promises?

Legislation state of play table
Our regular update of the progress of legislation of interest to construction passing through the UK and EC legislative systems comes from Dentons UK and Middle East LLPTracey Summerell discusses the Grenfell Tower Inquiry phase 1 recommendations.

Reports from the courts
Our latest round up of the court cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP includes one that highlights the need for joint ventures to consider when and how pain/gain share related payments are made; and one concerning whether supply of materials is covered by the Construction Act’s adjudication regime.

Analysis
Algorithms tackling cartels
Competition authorities have their eyes firmly fixed on construction, which looks to them like an easy as well as an obvious target. Things look like heating up for the lawbreakers, with new technology making cartel and other anti-competitive behaviours easier to spot, as Editor Nick Barrett reports.

CL guides
NEC4 Suite of Contracts
The latest article in our Guides to Construction Law series comes from Naithan McBride of DLA Piper who examines the ‘upgraded’ NEC4 contracts suite. The stress is on increased flexibility, collaboration and ease of use, he explains.

Arbitration
IChemE’s Arbitration Rules: the new Pink Book fifth edition
Barrister Paul Buckingham, Chairman of the IChemE Disputes Resolution Panel, explains the changes to the Institution’s Arbitration Rules, contained in the fifth edition of The Pink Book.

Contracts
Blockchain boost for ‘smart’ contracts
Lampros Stougiannos of Dentons Canada LLP warns that the rapidly developing uptake of digital technologies across industries, including BIM in construction, allied to a more collaborative approach to project execution, will force changes to contracts. Throw blockchain into the mix, and ‘smart contracts’ are not far off.

Economic Loss
The perennial problem of pure economic loss
Not being able to recover economic loss is an issue constantly bedevilling construction. Barristers Chris Bryden and Georgia Whiting of the Chambers of Timothy Raggatt QC, 4 King’s Bench Walk, analyse why it is a particular problem for large multi-party projects.

Insurance
Cyber risks – are you secure?
With the risk from mischievous hackers and other cyber criminals growing worldwide, insurance expert John D Wright of JD Risk Associates explains the sort of cover companies should be contemplating.

Legislation 
Limited legal support hampers solar growth
Legal writer and former law lecturer Anastasia Barich-Chivikova analyses a recent court ruling that offers little encouragement to solar energy market companies seeking compensation for changes in government funded subsidy regimes. Is there a warning here for those relying on other subsidies?

Alternative dispute resolution
Engage emotional intelligence
In the first of two articles about preparing for mediation, Tracey Summerell of Dentons UK and Middle East LLP considers how settlement prospects can be improved by the early use of our emotional intelligence/quotient (EQ).

Construction Law: November 2019

Editor’s comment
Procurement needs more competition and transparency
Public sector procurement has always been a focus of interest to Construction Law and in recent years recognition of the need for reform has been growing, writes Nick Barrett.

News
Our regular construction law and procurement news round up covers the demise of a Bill that sought to reform cash retentions, the issuing of fines totalling £36m to firms involved in a concrete products cartel and a call for government to use its procurement power to bring social value.

Legal terms explained
Philip Parrott and Noe Minamikata of Herbert Smith Freehills LLP explain the meaning of delay and disruption.

Guest editor
Onerous terms must be resisted
Guest editors Will Buckby and Madeleine Kelly of Beale & Company Solicitors LLP report that increasingly onerous conditions are being imposed on consultants, some which may not be covered by professional indemnity insurance. Consultants must be prepared to ‘walk away’ when conditions attempt to impose risks that cannot be properly managed, they urge.

Legislation state of play table
This table, prepared by Dentons UK and Middle East LLP, provides a regularly amended guide to new and proposed legislation that will affect the construction industry. In addition to UK legislation and EU Directives, the table includes notes highlighting discussion papers issued by both government and non-government organisations and commentary on the latest developments. Akin Akinbode and Tracey Summerell consider the CIOB’s new Code of Quality Management.

Reports from the courts
In our latest report on the cases of most interest to construction Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP analyse one which shows that the courts will not permit an action to be brought in breach of an agreement containing a dispute resolution procedure; and another from Scotland that increases certainties surrounding collateral warranties.

Analysis
Risks from drive to low carbon future
The drive to a low carbon economy is underway worldwide. Editor Nick Barrett reports on clear warnings being given to companies that don’t get their low carbon act together that politicians, regulators, the public and their clients will be lining up to dish out punishment.

CL guides
The site
In this month’s guide Hannah Thomas of DLA Piper provides an overview of four key legal issues relating to sites – access; responsibility for the site; unforeseen conditions; and ownership of materials.

Insolvency
Protecting yourself from insolvency
Construction insolvencies are rising at an increasing rate and companies of all sizes are being liquidated leaving trails of debt behind. Simon Lewis and Philippa Jones of Womble Bond Dickinson examine the common causes of insolvency and suggests ways to protect your position.

Technology
Smart contracting technology is ready for use
Tracey Summerell and Mark Macaulay of Dentons UK and Middle East LLP analyse the obstacles to smart contracts being widely adopted in construction. The reality of smart contracting may be closer than you think, they suggest.

Disputes
Dispute boards’ use likely to grow
The use of dispute boards has been growing on international projects as Rebecca Shorter of White & Case LLP reports. Although the adjudication regime reduces their need in the UK, for larger projects their use looks likely to grow.

Alliancing
Targeting costs with Alliancing
While growing in popularity, Alliancing remains light years away from being as popular in the UK as it is in Australia, for example. Its use is growing however, as Cecily Davis of Freshfields notes in this examination of the gain/pain sharing that lies at the heart of Alliancing.

Insurance
Professional indemnity market hardens
Insurance premiums are rising again, cover is harder to find and the outlook is for more of the same, as insurance expert John D Wright of JD Risk Associates explains in this overview of current trends in the professional indemnity market.

Alternative dispute resolution
How to improve mediation uptake?
In our latest alternative dispute resolution series article Malcolm Gunnyeon of Dentons UK and Middle East LLP reports on the introduction of a Mediation Bill in Scotland.

Construction Law – October 2019

Editor’s comment
No easy rides for late payment reform
New rules threaten to ban late payers from government projects, but Editor Nick Barrett reports that there is scepticism whether the new rules will be enforced strongly enough.

News
This month’s news roundup highlights guidance on improving quality management in construction, details of new government rules around late payment and a public inquiry into two Scottish hospital projects where safety concerns have been raised.

Legal terms explained
Olivia Liang of Herbert Smith Freehills LLP explains delay liquidated damages.

Guest editor
Fear of the unknown
Guest editor Stephen Woodward, a risk management consultant, asks whether the early warning system (EWS) approach is helping to produce fit for purpose risk management. He says it could if the industry is prepared to take confident steps forward.

Legislation state of play table
This table, prepared by Dentons UK and Middle East LLP, provides a regularly amended guide to new and proposed legislation that will affect the construction industry. In addition to UK legislation and EU Directives, the table includes notes highlighting discussion papers issued by both government and non-government organisations and commentary on the latest developments. Roy Pinnock considers the latest changes to the community infrastructure levy.

Reports from the courts
Our regular round up of the cases of most relevance to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP focusses on a case highlighting that the courts will accept the natural and ordinary meaning of words unless there is evidence to the contrary; and another underlining the importance of clearly pleading your case and fully particularising specific breaches and how they lead to the losses claimed.

FIDIC Emerald Book
Emerald light shines on underground risks
Editor Nick Barrett outlines the key aspects of the Emerald Book, a new contract launched by FIDIC specifically for use on projects involving tunnelling or other underground works. Proper risk allocation lies at the heart of its ambition, he reports.

CL guides
Claims for time, loss and expense
The latest in our series of guides comes from Abigail Holmes of DLA Piper who explains the background to contractual claims and advises what employers and contractors should pay particular attention to.

Practical completion
Practical completion – easier to recognise than define
Mark Lawrence of Macfarlanes LLP analyses the reasons why disputes arise over practical completion and examines relevant case law, including a recent appeal court ruling.

Letters of intent
Letters of intent – a necessary risk?
Oli Macrae of Foot Anstey analyses the reasons for uncertainty that surround letters of intent. Conduct of a party to a contract can result in it being unenforceable, he warns.

Legislation
Sloppy housebuilders to get the bullet?
Housebuilders have come under fire for the standard of new properties. Christobel Smales of Cripps Pemberton Greenish asks whether the New Homes Ombudsman will offer the silver bullet for redress that new home owners have been waiting for?

Alternative dispute resolution
Don’t let tiered agreements end in tears
Vijay Bange and Tanya Chadha of Trowers & Hamlins LLP examine recent court decisions affecting tiered alternative dispute resolution agreements. While eminently sensible for long term contracts and relationships, without care they could become obstacles to resolving disputes on shorter term situations.

Insurance
Economic loss and insurance
Insurance expert John D Wright of JD Risk Associates examines the insurance implications of the difference between economic loss in tort and losses that flow from a specific event. Relevant case law is extensive and there is a common thread linking termination of liability for losses.

Alternative dispute resolution
Dispute resolution clauses
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East LLP looks at a recent decision highlighting the support the courts will give to dispute resolution clauses.