Contents

Editor’s comment
Construction remains cartel target
Editor Nick Barrett warns that competition authorities have clearly demonstrated that they regard construction as a prime target for their cartel and other anti competitive behaviour investigations.

News
Latest news this month includes a new consultation on the government’s approach to supporting private investment in infrastructure and a call for high value contracts to no longer be let to outsourcers, following the failure of Interserve.

Legal terms explained
Rebecca Scanlon of Herbert Smith Freehills LLP explains what the recently launched Disclosure Pilot Scheme aims to achieve.

Guest editor
Managing currency fluctuation risk
Currency movements can always have unwelcome impacts on construction projects, especially at times of uncertainty such as that induced by Brexit. Guest editor Chris Philpot of HFW warns that the trend towards larger single package contracts makes managing the risk ever more crucial.

Legislation state of play table
Our regular update on legislative proposals and guidance from government comes from Dentons UK and Middle East LLP. Mark Macaulay and Tracey Summerell provide a commentary on an updated Supplier Code of Conduct from the Government Commercial Function.

Reports from the courts
Our latest round up of court cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP focus on one that highlights the importance of considering contracts in their entirety; and another affecting adjudication and insolvency.

Contracts monitor
Copyright demands careful reading of text
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his analysis of the JCT’s Design and Build contract. Contractors are not obliged to search for discrepancies in design documents supplied to them, but must immediately give notice of any that are spotted.

CL guides
Concurrent delay
Naithan McBride and Joanna Logie of DLA Piper explain issues surrounding concurrent delay in the latest article in our series of guides to the fundamental principles of construction law.

Legislation
Safe as houses?
In the first instalment of a two part article Chris Bryden and Georgia Whiting, Barristers of Chambers of Timothy Raggatt QC, 4 King’s Bench Walk, analyse the legislative regime relating to fire safety. Is it fit for purpose in the modern age, they ask?

Project bank accounts
Project bank accounts – can you bank on them?
Vijay Bange and Manpreet Kandola of Trowers & Hamlins LLP examine the impact that project bank accounts (PBAs) can have on maintaining cash flow along the supply chain. Two contractors add comments on how they view PBAs.

Adjudication
This house believes adjudication is better than court
Anne Wright of Lawrence Stephens Solicitors and Kings College Construction Law Association reports from a debate at Kings College on whether adjudication was preferable to litigation for resolving disputes. The voting revealed a significant preference, but recognition that both had their place.

Adjudication and insolvency
Claire Martin and Nick Pinder of Eversheds explain the implications of a recent appeal court ruling on whether adjudicators can have jurisdiction when an adjudication is commenced by an insolvent party.

Insurance
Brokers’ professional negligence
Insurance expert John D Wright of JD Risk Associates examines the case law and the complex issues involved in the all too common event of an insurance broker being negligent in advising clients. A key case might yet be appealed.

Alternative dispute resolution
No ‘right’ way to arbitrate
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East LLP examines the recent ICC construction industry arbitrations report, aimed at arbitrators with little experience of ICC rules.

Editor’s comment
Playing at reform?
Editor Nick Barrett casts a sceptical eye over proposed central government procurement reforms outlined in an Outsourcing Playbook.

News
Our news roundup features the launch by the Cabinet Office of an Outsourcing Playbook, which includes changes to the way risk is allocated, as well as details of a move by the Scottish government to halve the threshold for using project bank accounts.

Legal terms explained
Philip Parrott and Michael Sharp of Herbert Smith Freehills LLP explain what is meant by crystallisation.

Guest editor
New legislation needed for adjudication?
Guest editor Laura Lintott of Dentons UK and Middle East LLP asks whether legislative changes to the Housing Grants, Construction and Regeneration Act 1996 are necessary to clarify the process in ‘smash and grab’ and subsequent ‘true value’ adjudications.

Legislation state of play table
Our round up, 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 provide a commentary on Project Bank Account proposals.

Reports from the courts
Our regular analysis of the court cases most relevant to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who focus on a decision that helps clarify the circumstances in which practical completion will be awarded; and one which is an example of the courts enforcing a commercial agreement between parties of equal bargaining power.

Contracts monitor
Beware administrative provisions
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, focuses on the administrative provisions of the JCT Design and Build Contract. Failure to understand them can have knock-on effects, he warns.

CL guides
Directors and health and safety
The latest in our guides to construction law comes from Rachel Chaplin of DLA Piper who explains the health and safety responsibilities of directors.

Prevention
Prevention principle and expressly agreed terms
Mark Macaulay and Charmandip Bhart of Dentons UK and Middle East LLP report on a Court of Appeal judgment that reverses a common law position, confirming that parties may allocate the risk of concurrent delay without contravening the doctrine of prevention.

Liquidated damages
Liquidated damages and guarantor liability principles
Richard Booth and George Harris of HFW analyse a court judgment that provides a useful reminder of the enforceability of liquidated damages. There is a distinction to be drawn between guarantees and indemnities in the context of guarantor provided security.

Legislation
Consumers and construction contracts
Peter Kitson of Russell-Cooke LLP says legislation is needed to provide a proper basis for consumers to contract with construction industry suppliers. Existing legislation is hard to apply in construction and creates unenforceable rights, he argues.

Technology
Smart buildings: unlocking the potential of bricks and mortar
Data driven technologies hold out great promise in developing ‘Smart Buildings’ and ‘Smart Cities’ but, as Simon Porter of CMS warns, there are risks and barriers to be overcome.

Insurance
Insuring at your peril
Insurance expert John D Wright of JD Risk Associates warns that the interpretation of ‘perils’ in insurance policies can be tricky, and standard joint names protection clauses in contracts cannot be relied on.

Alternative dispute resolution
ADR liaison forum proposed
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East LLP explains new measures proposed to spread awareness of the alternatives to litigation. More innovative approaches might help the proposals to succeed, she suggests.

Editor’s comment
Business life goes on post Brexit
New guidance from the Cabinet Office and closure of a procurement loophole by the appeal court are signs that familiar rules will still apply post Brexit, says Editor Nick Barrett.

News
News featured in this month’s issue includes a new entrant to the construction insurance market as premiums soar; a call to establish a forum for liaison between judges, legal professionals and other stakeholders to progress the role of alternative dispute resolution; and details of a new Private Member’s Bill to ensure the use of project bank accounts on public sector schemes.

Legal terms explained
Philip Parrott of Herbert Smith Freehills LLP explains the meaning of ‘the notified sum’.

Guest editor
Adjudication: How’s it working?
Guest editor Naithan McBride of DLA Piper asks how adjudication and the Construction Act are working, ahead of the results of a government consultation being published. Recent cases may point legislators towards areas ripe for reform, he suggests.

Legislation state of play table
Our regular round up on the progress of legislation as it passes through the EU and UK legislative systems comes from Clyde & Co LLP. Tim Axtmann and Claire Mayo provide a comment on a call for cartel whistleblowers from the Competition and Markets Authority.

Reports from the courts
Our regular review of the most important court decisions for construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP focuses on a Court of Appeal ruling that highlights the potential problems of working before finalising contract terms; and a case that provides a rare example of a claim for procuring or inducing breach of contract.

Contracts monitor
Watch out for new definitions
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, finds big changes in the definitions applying to JCT Design and Build Contract 2016. A long-standing provision, on which many a claim has foundered, is retained.

CL guides
Key ancillary agreements
Hannah Thomas of DLA Piper continues our series of guides to construction law topics with an examination of ancillary agreements. Four key types of ancillary agreements are examined.

Review of 2018
Reasons to be cheerful despite 2018 setbacks
In a year dominated by the potential unravelling of 40 years of EU legislation, 2018 brought much disappointment for construction, says Cecily Davis of Freshfields in this review of the key developments. For the future, it is time for the industry to deliver on the sustainability front, she argues.

Scotland in 2018
Shona Frame and Nicholas Carroll of CMS review 2018 with a focus on Scotland, where the impact of Carillion’s collapse kicked off an interesting year of significant case law, government consultations and legislative developments. Earlier strengthening of Scottish building regulations meant few buildings were affected by a post-Grenfell disaster focus on cladding.

Contracts
Plus ça change – why amending published construction contracts is good practice
A common industry view is that standard form contracts are best used unamended. Peter Kitson of Russell-Cooke takes issue with that idea and insists that amending contracts in fact represents well-established good practice.

Insurance
Insuring today’s environment
Insurance expert John D Wright of JD Risk Associates inspects the cover available for environmental damage. Mainstream insurers provide very limited cover so a specialist insurance market must be tapped.

Development
Pressure to use airspace builds up
Anne Wright and Avi Barr of Lawrence Stephens Solicitors analyse some of the issues related to the growing trend towards airspace development for both private and public sector clients. Its impact on housing provision could be significant but there are potential legal and planning issues to overcome, they warn.

Alternative dispute resolution
Fate of smash and grab adjudications decided
The latest in our alternative dispute resolution series, from Chris Leadbetter and Emily Morris of Clyde & Co LLP, examines a recent Court of Appeal decision that spells the end for ‘smash and grab’ adjudications.

Editor’s comment
May the force be with you
Editor Nick Barrett says it is clear which side to support in the promised ‘revolution’ in public sector procurement; but victory will be hard to achieve.

News
Chancellor Philip Hammond’s announcement that government will no longer sign off PFI contracts leads this month’s news round up, which also includes the latest figures on fines for health and safety offences and details of a new approach to highways procurement.

Legal terms explained
Michael Sharp of Herbert Smith Freehills LLP on no loss arguments.

Guest editor
Limiting amendments is no easy task
Guest editor Sarah Thomas of DLA Piper examines FIDIC’s Golden Principles, which aim to define what the essential elements of a contract conforming to the philosophy of the organisation should be. Although well intentioned, the Principles demonstrate the practical difficulties of trying to limit amendments, she argues.

Legislation state of play table
Clyde & Co LLP compiled our regular update on the progress of legislation affecting construction making its way through the EC and UK legislative systems. Andrew Primett and Claire Mayo of Clyde & Co LLP discuss the European Parliament’s resolution on the Commission’s public procurement strategy package.

Reports from the courts
Our regular round up of key cases from the courts comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, focussing on a decision that will be welcomed by parties providing collateral warranties to third parties; and a rare example of a case involving NHBC cover.

Contracts monitor
Insurance footnote a ‘must read’
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of JCT’s Design and Build Contract 2016 Contract Particulars, focussing particularly on insurance provisions. As the scale of changes suggests, the Contract Conditions will also contain substantial changes.

CL guides
Damages
In our latest Guide to construction law topics from DLA Piper Rachel Chaplin explains the different types of damages, what they are, how they may arise and how they are calculated.

Payments
Not such a smashing and grabbing time now
Richard Booth of Holman Fenwick Willan LLP analyses a key appeal court decision relating to the vexed issue of payments under the Construction Act where no valid payment notice or pay less notice has been issued. Is it the end for ‘smash and grab’ adjudications?

Brexit
Time to think about life after Brexit
Government has advised companies to make contingencies for a no-deal Brexit, against a background best described as uncertain. Editor Nick Barrett describes the guidance that has so far been offered relating to pursuing EU projects and the new competition regime that might exist.

BIM Protocol
BIM, ECI, collaborative working and joint risk management – pieces of a jigsaw?
Asad Chaudhri of Turner & Townsend identifies a lack of clarity in the guidance offered in the Construction Industry Council’s BIM Protocol and warns that some BIM ‘solutions’ might have unintended consequences.

Human rights
Time to step up to human rights responsibilities
A United Nations Working Group has published its first draft treaty to regulate human rights on large international projects. Catherine Gilfedder and Esther McDermott of Dentons warn that the construction industry is under ever closer human rights scrutiny.

Insurance
Third party rights against insurers
Insurance expert John D Wright of JD Risk Associates examines the background to third party rights now that reforming legislation has been effective for two years. Diligence before project commencement is still essential to prevent later problems.

Alternative dispute resolution
Arbitration clauses and Pt 8 applications
In the latest of our alternative dispute resolution series articles Richard Kniveton of Clyde & Co LLP examines a judgment highlighting that the effects of JCT’s standard arbitration clause should not be underestimated.

Editor’s comment
New initiative must not be old wine in new bottles
Editor Nick Barrett says the late and unlamented Private Finance Initiative, killed by the Chancellor in the Budget, must not be replaced by a disguised version of the old model, or a new one that achieves nothing better.

News
This month’s news roundup includes a call for government to improve transparency over the outcomes of its biggest infrastructure projects, the result of Arcadis v Amec in the Court of Appeal and a new NEC4 practice note on offsite modular construction.

Legal terms explained
Richard Ashmore and Noe Minamikata of Herbert Smith Freehills LLP explain the prevention principle.

Guest editor
New contracts and procurement routes needed
Guest editor Richard Bayfield, Project Director, Gradel Quad Development at New College Oxford & Member of Project Board, Lambeth Palace Library, asks what lessons need to be learned in the face of the growing tide of criticism of UK construction. Fresh thinking on procurement, risk and contract forms is urgently needed, he argues.

Legislation state of play table
Clyde & Co LLP compiled our regular update on the progress of legislation affecting construction making its way through the EC and UK legislative systems. Lois Putnam and Katie Boardman of Clyde & Co LLP provide a commentary on a new ‘key principles’ guide from the Construction Industry Council.

Reports from the courts
Our regular round up of key cases from the courts comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, focussing on an appeal court decision with implications for extensions of time; and a Northern Ireland court ruling on a dispute concerning a net contribution clause.

Contracts monitor
New laws force contract changes
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, scrutinises the JCT Design and Build Contract which has been popular since its 1981 introduction. Although flexible, it is not suitable where the contractor is only to provide a design for part of the works, he warns.

CL guides
CDM Regulations
In our latest Guide to construction law topics from DLA Piper Rachel Chaplin explains how the regulatory regime of the CDM Regulations works.

International
The FIDIC Silver Book: just a starting point
Cecily Davis of Fieldfisher analyses the 2017 FIDIC Silver Book, the most used contract internationally for major infrastructure projects, asking whether the strong recommendation that its risk/reward balance between parties should not be changed is being observed.

Contracts
Making a contract – does it do what it says on the tin?
Kwadwo Sarkodie of Mayer Brown International warns that knowing the devil is in the small print is no help if the contract is signed without being read at all. Also be careful that the contract covers what you think it does, he warns.

Adjudication
Adjudication and liquidation
Vijay Bange and Manpreet Kandola of Trowers & Hamlins see a resurgence in adjudication in the face of the rising costs of litigation and arbitration, against a background of growing insolvency worries. Can companies in liquidation use adjudication to pursue claims, they ask?

Litigation
Appeal court upholds privilege
Gurbinder Grewal and Natalia Fludra of Dentons UK and Middle East LLP examine the implications of a recent appeal court ruling that clarifies the scope of legal professional privilege.

Insurance
Design clauses – draft with care
Insurance expert John D Wright of JD Risk Associates warns that care needs to be taken with drafting design clauses in insurance contracts. Insurers themselves have fallen victim to sloppy policy drafting.

Alternative dispute resolution
Adjudication and set-off
In our latest alternative dispute resolution series article Emily Morris of Clyde & Co LLP examines a recent decision that highlights the approach the courts will take to set-off in adjudications.

Editor’s comment
Franchise fiasco demands procurement reform
Editor Nick Barrett says the Transport Select Committee’s report on the Intercity East Coast franchise collapse reveals as much about the state of public sector procurement as it does about franchising as a business model.

News
Our regular news roundup includes a plea for the government to review the role of Crown Representatives after Carillion’s collapse; a report into the failings of the East Coast railway franchise; and details of a crackdown on directors who dissolve companies to avoid paying debts.

Legal terms explained
Philip Parrott and Noe Minamikata of Herbert Smith Freehills LLP explain what is meant by misrepresentation.

Guest editor
Penalties freed from straightjacket
In Cavendish Square Holding BV v Makdessi the Supreme Court rewrote the penalty rule. Three years on, guest editor Richard Ashmore of Herbert Smith Freehills LLP revisits how Cavendish established the current approach to penalties.

Legislation state of play table
Clyde & Co LLP present a round up of the progress of legislation affecting construction as it passes through the EC and UK legislative systems. Tim Axtmann and Ross Howells comment on the Infrastructure and Project Authority’s annual report on major projects.

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 focuses on an appeal court decision that enforces clear exclusions of liability in commercial contracts; and an appeal in the Scottish courts that will provide comfort to consultants worried about clauses stating that they are fully responsible for design.

Contracts monitor
Practice Note worth paying attention to
Contracts monitor Michael Phipps, Principal of Thurston Consultants, ends his scrutiny of the JCT Tendering Practice Note 2017 with a look at the section designed to request information about tenderers. High profile insolvencies suggest this information, if sought, is not properly provided or considered, he warns.

CL guides
Document management
In the latest in our Guides series from DLA Piper Anthony Willis and Harry Thompson explain why a proper approach to managing documentation is essential, especially when disputes arise.

Penalties
‘Case of the century’ sets new rules on penalties
Cecily Davis of Fieldfisher examines what was billed as the case of the century, which painted a tawdry picture of the UK development sector. Case law has now established that the rule on penalties still exists but its application is more limited and proportionate consequences are required.

Technology
Drones are here to stay and to help
Drones have the potential to deliver massive cost savings to construction, but their use has not been without controversy. Shona McCusker of CMS looks at the legal implications surrounding their use and warns of tightening regulation.

Funding
Streamlining private sector development lending
Securing finance for developments can be a complex and lengthy process but Anne Wright of Lawrence Stephens Solicitors suggests six steps that can be taken to speed things up. Overcautious lenders often misunderstand project risk, she warns.

Insurance
The role of insurance brokers
Insurance expert John D Wright of JD Risk Associates explains the valuable role that insurance brokers can play in ensuring that cost effective cover is provided. They can more than justify their cost, he argues, but need to be carefully selected.

Payment
When does the pay less notice regime apply?
Laura Lintott of Dentons UK and Middle East LLP analyses the pay less notice regime in the wake of last year’s Court of Appeal ruling on whether the Construction Act applies to final payment applications made after contract completion or termination.

Alternative dispute resolution
Adjudication and insolvency
Our latest alternative dispute resolution series article from Russell Banfi of Clyde & Co LLP examines what to expect when liquidators of an insolvent party initiate an adjudication.

Editor’s comment
Mediation proving its worth
Editor Nick Barrett welcomes the good news about the success of mediation in CEDR’s latest audit, and looks forward to better responses to the new diversity question in the 2020 Audit.

News
News featured this month includes details of a 20% rise in commercial mediations since 2016; a revelation that nine in 10 councils are failing to comply with regulations on 30 day payments; and a call to promote common procurement standards in construction including un-amended forms of contract.

Legal terms explained
David Nitek and Michael Sharp of Herbert Smith Freehills LLP explain what is meant by time at large.

Guest editor
Steady evolution in dispute resolution
Guest editor Shona Frame of CMS examines changes in attitudes towards dispute management and resolution after 20 years of the ‘Construction Act’. Clear evidence of a continuing move away from the industry’s traditional disputes culture can be seen, she argues.

Legislation state of play table
Clyde & Co compiled our regular update on the progress of legislation affecting construction making its way through the EC and UK legislative systems. Ana Bonnington and Henry Taylor comment on the proposed Heathrow airport expansion.

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, including one highlighting the need for clear and broad termination provisions; and one confirming that oral agreements to vary contracts containing NOM clauses may not be effective.

Contracts monitor
Pay attention to footnotes
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his review of JCT’s Tendering Practice Note 2017. Non-price criteria for assessing best value throw up special problems, he warns.

CL guide
CL guide: contract administration
Our Guides to Construction Law series from DLA Piper continues with Yasmin Bailey analysing the role and responsibilities of the contract administrator.

Technology
Is there a role for blockchain and smart contracts in construction?
All industries expect to be transformed by the introduction of high profile new technologies like virtual reality, robotics and the Internet of Things. Davinia Cowden of CMS examines the role that less visible developments like blockchain and ‘smart contracts’ could soon be playing in construction.

Legislation
Buildings regulatory framework not fit for purpose
Barry Hembling of Fladgate says the Grenfell Tower disaster will force fundamental change on the construction industry, for example making clients, designers and contractors responsible for buildings throughout their life cycle. Detailed audit trails will need to be kept, providing evidence for prosecutions.

Employment
Employment practices come under the spotlight
Stephen Radcliffe of Walker Morris LLP reviews some recent employment developments and their implications for construction. Modern slavery, the gender pay gap and self-employed status are among the issues attracting increasing attention.

Arbitration
Trends in international arbitration
Rebecca Shorter of White & Case reviews the highlights of the 2018 international arbitration survey that reveals the procedure’s growing popularity for resolving disputes. A significant growth in using ADR in conjunction with arbitration has been found.

Insurance
Insurance warranties under fire
Insurance expert John D Wright of JD Risk Associates explains how the Insurance Act 2015 is having a marked effect on insurance contracts, in particular in relation to warranties. Trying to avoid liability merely because of a breach which had nothing to do with the actual loss claimed, will not be supported by the courts.

Alternative dispute resolution
Dispute boards as a means of alternative dispute resolution
Our latest alternative dispute resolution series article comes from Lois Putnam of Clyde & Co who examines the various types of dispute boards.

Editor’s comment
Something rotten in the culture?
Editor Nick Barrett argues that MPs should now turn their attention to the government’s procurement system if they want to prevent disasters like the collapse of Carillion happening again.

News 
Our regular news round up focusses on the damning Parliamentary report into the collapse of Carillion; a call to action on modern slavery; and a promise of consultation following the Grenfell Tower disaster.

Legal terms explained
David Nitek and Rebecca Scanlon of Herbert Smith Freehills explain how disputes boards work.

Guest editor
Retentions reform coming at last?
Jonathan Hyndman, Partner at Rosling King, discusses the need for reform as demonstrated by the impact of Carillion’s insolvency earlier this year.

Legislation state of play table
Clyde & Co update us on the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Iain Boyle and Daniel Green on the Construction (Retention Deposit Schemes) 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, including the first case in which the courts have considered the interplay between project insurance and sub-contractors; and one that carries clear warnings for project monitors and lenders.

Contracts monitor
Value seen in reality checks
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of the JCT Tendering Practice Note, warning that care needs to be taken with qualified tenders. Periods for acceptance should always be stated, he recommends.

CL guide
CL guide to: termination
Our Guides to Construction Law series from Clare Rushton of DLA Piper looks at termination.

Collaboration
Alternatives emerge to BIM Protocol
Professor David Mosey, Director of the Centre of Construction Law and Dispute Resolution at King’s College London, reviews the recently updated Construction Industry Council BIM Protocol, suggesting that FAC-1 may provide a viable, more accessible alternative.

Insolvency
In support of sub-contractors
Anne Wright of Lawrence Stephens Solicitors says there are several vital steps that sub-contractors should take to protect themselves against main contractor insolvency. Ask if the main contract requires a retention before agreeing to one, she advises.

Payments
Focus intensifies on payment issues
Shona Frame of CMS Cameron McKenna Nabarro Olswang LLP reviews the current government and industry initiatives relating to improving the industry’s payment practices. She also looks at recent case law that will impact on this always vexed issue.

Adjudication
Smash and grab adjudications – redressing the balance
Gurbinder Grewal and Tracey Summerell of Dentons review Coulson J’s final TCC decision in Grove – the latest instalment in the ‘smash and grab’ adjudications saga. Leave to appeal has been granted and further developments can be expected on this issue, they warn.

Insurance
The contra proferentem rule in insurance claims
Carillion’s collapse has put the spotlight on credit insurance, which few of its creditors seem to have had. Insurance expert John D Wright of JD Risk Associates explains what cover the market provides.

Alternative dispute resolution
Fraud justifies adjudication stay
Our alternative dispute resolution series article from David Owen of Clyde & Co analyses a new ground that has been found for resisting adjudication enforcement – fraud.

The Carillion fallout is still spreading across the construction industry, and looks likely to do so for some time.
An immediate knock on effect is insolvencies among Carillion’s suppliers, caused by the large unsettled debts the collapse left them facing. Those companies themselves owe significant sums to their suppliers, and so the chain reaction continues.

Read more

Editor’s comment
BIM expertise in short supply?
Does your lawyer actually understand BIM? Editor Nick Barrett comments on a report that suggests not always.

News
Our regular round up of key construction law related news includes government action on payment practices; a £100 million damages award relating to a tunnel collapse; and publication of a second edition of the CIC’s BIM Protocol.

Legal terms explained
Claire Wilmann and Michael Mendelblat of Herbert Smith Freehills LLP explain fitness for purpose.

Guest editor
Decision threatens protection of privilege
Many construction parties involved in disputes instruct expert witnesses via lawyers, partly to attract the protection of privilege to confidential documents. Guest editor Vijay Bange of Trowers & Hamlins argues that a recent decision in a non-construction case might undermine that protection.

Legislation state of play table
Our regular round up of the progress of legislation affecting construction as it passes through the UK and EC legislative systems comes from Clyde & Co. Andrew Primett and Ross Howells comment on the overhaul of the National Planning Policy Framework.

Reports from the courts
In our review of cases of most interest to construction Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP look at a surprise ruling on adjudication; and a rare example of a TCC judgment on a Pre-Construction Services Agreement.

Contracts monitor
Keeping records is good practice
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, warns of changes in the JCT Tendering Practice Note that might easily be overlooked. He also warns about keeping proper records as in many disputes parties are unable to produce the contracts under which they work.

CL guide
CL guide to: professional appointments
Our construction law guides series from DLA Piper continues with an article from Sarah Nunnery-Jones on professional appointments.

Adjudication
Courts giving mixed messages on smash and grab
Have ‘smash and grab’ adjudications been replaced by ‘true’ value adjudications? Elissa Patel and Michael Mendelblat of Herbert Smith Freehills LLP review the situation following a new TCC decision.

Smash and grab here to stay?
Vijay Bange and Oliver Williams of Trowers & Hamlins review the conclusions of their earlier article on smash and grab adjudications in the second of two articles on a key TCC decision in this issue of CL.

Dispute avoidance
Risk management boosts investor confidence
Anton Krause of ResoLex (South Africa) is bringing the RADAR dispute early warning system to the African markets. He explains how these techniques are increasing investor confidence in infrastructure.

Abitration
Construction arbitration a winner under new ICC rules
Raid Abu-Manneh, Rachael O’Grady and Juliana Castillo of Mayer Brown ask whether new ICC arbitration rules that came into force last year have increased speed, efficiency and transparency.

Insurance
Carillion highlights credit insurance
Carillion’s collapse has put the spotlight on credit insurance, which few of its creditors seem to have had. Insurance expert John D Wright of JD Risk Associates explains what cover the market provides.

Alternative dispute resolution
The use of expert determination
In our latest alternative dispute resolution series Lois Putnam of Clyde & Co provides a short guide to the use of expert determination.