Contents

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.

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.

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 LLP. Tracey 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).

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.

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.

Editor’s comment
Crossrail fiasco can expect further scrutiny
Editor Nick Barrett expects the new minister for procurement to take a close look at Crossrail ahead of any boost to public sector investment following a damning report from MPs.

News
Featured news this month includes an accusation by MPs that building and fire safety reforms are moving too slowly post-Grenfell; details of more suspensions from the Prompt Payment Code; and the results of new research into insurance disputes.

Legal terms explained
Michael Sharp and Elissa Patel of Herbert Smith Freehills LLP explain what is meant by true value adjudications.

Guest editor
What’s next for UK construction?
Construction is ripe for disruption and massive changes are coming says guest editor Shona Frame of CMS. Can the industry adapt to address the perfect storm of challenges it faces?

Legislation state of play table
Our regular round up of new and proposed legislation that will affect the construction industry comes from Dentons UK and Middle East LLP. Mark Macaulay and Tracey Summerell provide commentary on government’s progress to create a more responsible payment culture.

Reports from the courts
Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP present our regular round up of court cases of most interest to construction. One decision confirms that the courts will enforce time bars to adjudication under NEC contracts in circumstances where the Construction Act 1996 does not apply; another emphasises the importance of clarity as to what is being agreed in relation to selection of adjudicators.

Analysis
Environment Agency procurement breaks with the past
The Environment Agency has embarked on what is hoped to be a more collaborative delivery mechanism for its flood and coastal erosion risk management spending. Editor Nick Barrett reports that questions are being asked about whether the selection process for frameworks is throwing healthy babies out with the bathwater.

CL guides
CL guide – Limitation
Jenny Harrison of DLA Piper presents the latest in our CL Guides series, explaining the principles of, and recent developments in, limitation.

Markets
The challenging evolution of UK energy from waste
Cecily Davis and Ryan Musikant of Fieldfisher examine some of the key challenges facing the UK’s energy from waste sector. Among many successes there are also failed projects and financially damaged contractors, they warn, but things are getting better.

Technology
Contracts playing catch up in digital revolution
Construction has lagged in the digital revolution and the industry’s contracts still generally do not reflect Building Information Modelling, which sits at the revolution’s heart. Andrew Croft of Beale & Co Solicitors LLP and
May Winfield of Buro Happold examine efforts being made to help the industry catch up.

Contracts
Liquidated damages and unfinished works
Shaun Tame, Counsel at Dentons UK and Middle East LLP, examines how liquidated damages provisions operate in respect of unfinished work following an appeal court ruling earlier this year.

Modern methods of construction
The off-site manufacture revolution
Great hopes are being pinned on off-site manufacturing to deliver improved performance by the construction industry. Shona McCusker of CMS recognises the potential, but sees organisational hurdles that must be overcome.

Insurance
The risks of change
Insurance expert John D Wright of JD Risk Associates finds that insurers are encouraging customer loyalty as they seek to maintain market share. There may be good reasons to change insurers, but there may also be advantages to staying put.

Alternative dispute resolution
Affordable adjudication?
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East LLP examines new initiatives to cap costs for lower value adjudications.

Editor’s comment
TeCSA scheme limits adjudicator costs
Editor Nick Barrett says TeCSA’s adjudication cost saving initiative is to be welcomed, but asks whether adjudicators are being asked to shoulder an unwelcome burden of risk.

News
This month’s news round up includes the launch of a low value adjudication scheme; an update on developments two years after the Grenfell Tower fire; and an international arbitration survey looking at construction disputes.

Legal terms explained
Philip Parrott of Herbert Smith Freehills LLP discusses concurrent liability.

Guest editor
How can lawyers create a successful alliance?
Guest editor Professor David Mosey, Director of the Centre of Construction Law and Dispute Resolution at King’s College London, examines a successful example of supply chain collaboration and argues that it should boost public sector clients’ confidence that they can take a lead in creating contractually robust alliances.

Legislation state of play table
Our regular round up of legislation affecting construction as it passes through the UK and EC legislative systems comes from Dentons UK and Middle East LLP whose Mark Macaulay and Tracey Summerell provide a commentary on Theresa May’s green legacy.

Reports from the courts
Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP provide our regular round up of cases of most interest to construction, focusing on a rare example of a court refusing to enforce an adjudication due to fraud; and a decision that might result in an increase in collateral warranties being sought by house purchasers.

Collaboration
Collaborative construction’s time has come
Editor Nick Barrett reports on two new books that stress the need for systemic change in construction’s procurement and contractual procedures, and suggest ways forward. Real life examples show it can be done, he says.

CL guides
CL guide – Practical completion
Our latest Construction Law Guide from Tom Manley of DLA Piper explains what practical completion means and examines some of the issues surrounding it.

Arbitration
Witness conferencing in international arbitration
David Robertson, Emma Knight and Frederic Akiki of White & Case LLP examine the use of witness conferencing – often used in complex disputes – in international arbitration. It can be a powerful tool for expeditious and cost-effective hearings of contested witness evidence, they argue.

Expert witnesses
To be or not to be an expert witness
Anne Wright of Lawrence Stephens and barrister James Davison of 3PB provide practical guidance on selecting an expert witness, and advise witnesses how to behave once appointed.

Claims and variations
Maeda and China State v Bauer
Michael Sergeant and Huw Wilkins of HFW consider a recent decision of the Hong Kong High Court dealing with two issues that commonly arise on projects but which rarely come before the courts, namely the validity of claims notices under a contract and the valuation of variations, both of which arose on the ‘world’s most expensive railway’.

Mediation
What Hammurabi’s construction law teaches us
Leading construction mediation specialist Amanda Bucklow says easily understood rules covering ancient contractual relationships were models of clarity, simplicity and coherence, which has been lost to the modern industry. Modern understandings in areas like neuroscience point the way towards new contractual models, she suggests.

Insurance
Contract works insurance and its limitations
Insurance expert John D Wright of JD Risk Associates explains how ‘all risks’ insurance might not in fact cover all risks. Additions to the basic cover might be advisable, he warns.

Alternative dispute resolution
Technology in mediations: keep the human touch
In the latest of our alternative dispute resolution series, Esther McDermott and Tracey Summerell of Dentons UK and Middle East LLP consider the use of technology in mediations and recent advice for mediators on the topic published by the Centre for Effective Dispute Resolution (CEDR).

Editor’s comment
Private procurement failings exposed
Public sector procurement skills are regularly slated for being inadequate, but Editor Nick Barrett says Crossrail’s problems suggest that drafting in the private sector might not deliver better outcomes.

News
Featured news in this issue includes details of new tools designed to help prevent modern slavery on sites, a major settlement over the blacklisting of workers and the latest development in the Competition & Markets Authority’s crackdown on construction cartels.

Legal terms explained
Michael Sharp and Noe Minamikata of Herbert Smith Freehills LLP discuss suspension.

Guest editor
Insurance crisis means challenging times ahead for in-house counsel
Guest editor Bruce Hepburn, Chief Executive Officer of insurance consultants Mactavish, asks whether the collapse in the adequacy of insurance available to construction and engineering firms reflects more systemic problems. Is the insurance industry’s failure to embrace the Insurance Act the problem, and how can in-house lawyers compensate for that failure, he asks.

Contracts monitor
Late payments scourge remains
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, ends his long running series of articles on construction contracts with a final look at the JCT Design and Build Contract 2016 edition. The text of the section on the always tricky issue of payments is difficult to follow, despite simplifications.

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, focussing on a decision that serves as a reminder that where new evidence becomes available or where some part of the claim has been left undecided in an earlier adjudication, it may be possible to adjudicate again in relation to the same issue; and another that provides some clarification on liquidated damages.

Legislation state of play table
Our regular round up of legislation affecting construction as it passes through the UK and EC legislative systems comes from Dentons UK and Middle East LLP whose Esther McDermott and Tracey Summerell provide a commentary on the conditions imposed by the EU in return for an extension to the UK’s exit date from the EU.

CL guides
The Construction Act
In the latest of our series of Guides to key Construction Law topics Jessica Tierney of DLA Piper explains the regime introduced by the Construction Act and how it works in practice.

Adjudication
How much later is ‘later’?
In this update of the law on ‘smash and grab’ adjudications Vijay Bange and Tanya Chadha of Trowers & Hamlins LLP report on a case that they say seems to have been decided on policy considerations rather than having any real legal or judicial basis. Smash and grab is still with us, they argue.

Fracking
Fracking case law and its relevance to construction
Barristers Chris Bryden and Georgia Whiting of the Chambers of Timothy Raggatt QC, 4 King’s Bench Walk, examine the implications for construction of recent case law surrounding ‘fracking’ to extract shale gas.

Collaboration
Collaborate or die?
Collaboration is increasingly recognised as a key area where construction falls woefully short. Well known Independent Commercial Mediator Amanda Bucklow examines some of the mental and behavioural blocks to effective collaboration.

Prevention principle
A lack of principle
Christopher Edwards of 3PB Barristers examines the implications of an appeal court ruling that said the ‘prevention principle’ is not in fact a principle of law, but an implied term. Following this case perhaps nothing has changed – or perhaps everything has.

Insurance
Fire damage – tenants beware
Insurance expert John D Wright of JD Risk Associates examines the cover available for fire damage. Landlords as well as tenants should be cautious, he warns, and some case law does not set precedent for all situations.

Alternative dispute resolution
The shorter trials scheme
In the latest of our alternative dispute resolution series, Gurbinder Grewal and Tracey Summerell of Dentons UK and Middle East LLP highlight when it is appropriate to use the Shorter Trials Scheme and its sister process, the Flexible Trials Scheme, which are now entrenched as formal court processes in the Civil Procedure Rules.

Editor’s comment
Capital solution for fair payments
Editor Nick Barrett suggests that payments reform legislation might have to be accompanied by measures to help the weak balance sheets of major contractors.

News
Our regular procurement and construction law news round up includes details of a rise in fines for health and safety offences following new sentencing guidance; the roll out of a new pre-qualification system for construction; and the disqualification of two directors over a construction products cartel.

Legal terms explained
Philip Parrott of Herbert Smith Freehills LLP explains what is meant by acceleration.

Guest editor
Honouring the observance rather than the breach
Guest editor Amanda Bucklow, a widely respected Independent Commercial Mediator, says none of the changes in construction practice over the past 20 years or so have tackled the underlying causes of the industry’s adversarial culture. Adjudication has been no help as it undermines both the contract and performance.

Legislation state of play table
Our regular round up of legislation affecting construction as it passes through the UK and EC legislative systems comes from Dentons UK and Middle East LLP whose Gurbinder Grewal and Tracey Summerell provide a commentary on the government’s response to the Business, Energy and Industrial Strategy Committee’s recent report on small businesses and productivity.

Reports from the courts
Our latest round up of construction cases comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, focussing on a dispute involving failure to submit a payment or pay less notice; and a widely publicised domestic client case that highlights the importance of a written agreement, a clear brief, and clear and accurate record-keeping.

Contracts monitor
Who is in charge?
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, turns his attention to the control of the works section of JCT’s Design and Build Contract 2016. Among new requirements is one for the contractor to appoint a Site Manager approved by the Employer; the person in charge is no more.

CL guides
Insolvency
Ross Galbraith of DLA Piper continues our Guides to Construction Law series with a review of UK insolvency processes and measures that can be taken to spot potential problem contractors and protective steps that can be adopted.

Contracts
Price, scope of works and risk
Suriya Edwards of Foot Anstey LLP warns that a recent court decision means risk allocation clauses relating to works that are not ‘in scope’ can be rendered useless. The link between consideration and risk needs to be underpinned by a clear ‘scope of works’.

Insolvency
Mitigating insolvency effects in the supply chain
Gurbinder Grewal and Michael Wright of Dentons UK and Middle East LLP explain the knock on effects of insolvencies and the mitigating steps that can be taken. Early warning signs of looming insolvency can be spotted.

Liquidated damages after contract termination
Chris Philpot of HFW explains the implications of a court decision for liquidated damages claims following termination of a contract. The question of whether a party failing to issue a pay less notice can start a value adjudication without first paying the notified sum is also considered.

Legislation
Safe as houses: fire safety and the legislative regime – Pt II
In the second part of an article on the fire safety regime in England, barristers Chris Bryden and Georgia Whiting of Chambers of Timothy Raggatt QC move on to a critical examination of current legislation and proposals for reform.

Insurance
Insurance claims – forward planning essential
Insurance expert John D Wright of JD Risk Associates argues that forward planning is essential if proper protection is to be gained from insurance cover. Planning for a successful outcome to an insurance claim must start at the proposal stage.

Alternative dispute resolution
Model mediation agreements
The latest in our alternative dispute resolution series, from Gurbinder Grewal and Tracey Summerell of Dentons UK and Middle East LLP reviews the Construction Industry Council’s proposals for a model mediation agreement and procedure as consulted on towards the end of 2018.