Contents

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.

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.