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.

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.