Contents

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.

Editor’s comment
Zeroing in on zero retentions
Editor Nick Barrett says the chances of ending retentions could be higher than they have ever been, but the price would be a renewed industry focus on performance.

News 
Our news round up this month includes an update on the on-going investigation into Carillion’s collapse; evidence that the construction industry is firmly behind a Bill to reform damaging payment practices; and a landmark prosecution under s 7 of the Bribery Act.

Legal terms explained
David Nitek and Michael Sharp of Herbert Smith Freehills LLP explain the term ‘smash and grab’ adjudication.

Guest editor
Game players need to be match fit
Reform is in the air against a background of government consultations and the Carillion collapse. Guest editor Cecily Davis of Fieldfisher warns that if the industry is to be ‘match fit’ in the post Brexit world the government might take the opportunity to intervene on retentions.

Legislation state of play table
Clyde & Co LLP provide our regular update on the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Anna Bonnington provides a comment on the National Infrastructure Commission’s annual monitoring report.

Reports from the courts
Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP review the most recent cases of interest to construction including one highlighting that rights and remedies in respect of insolvency can apply after termination by a contractor for breach of contract; and another underlining from what point limitation periods start to run from.

Contracts monitor
Sensible suggestions for pre-qualification
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of JCT’s Tendering Practice Note. Some easy measures to help prevent collusion have been overlooked, he says.

CL guide
CL guide to: Striking a balance on liquidated damages
The latest article in our Guides series comes from Jennifer Price of DLA Piper who examines liquidated damages.

Expert witnesses
Expert evidence and construction claims
Digby Hebbard and Thomas Edwards of Fladgate review recent court cases that highlight the consequences of failing to manage expert witnesses adequately. Be careful in selection of experts as well, they warn.

Private finance
Off balance sheet and the Mutual Investment Model
Suriya Edwards of Geldards LLP examines the Welsh government’s Mutual Investment Model for bringing private finance into public sector projects. Sustainability requires a strong focus, she finds.

Contracts
Ingredients for a binding contract
Kwadwo Sarkodie of Mayer Brown analyses the ingredients that must be present for a legal contract to be formed. Even informal chats can turn out to be legally binding he warns.

Cash retentions
Cash retentions post Carillion
Stephen Radcliffe of Walker Morris LLP considers the implications of the Carillion collapse and what it means for the practice of cash retentions. A Private Members’ Bill might provide impetus for long awaited reform of retentions.

Insurance
The supply chain interruption risk
Insurance expert John D Wright of JD Risk Associates explains what the insurance market can provide to protect against the risk of consequential loss and supply chain interruption. Case law proves the wisdom of ensuring cover fully matches requirements.

Alternative dispute resolution
The end of ‘smash and grab’?
In our latest alternative dispute resolution series article Chris Kerr of Clyde & Co LLP asks whether ‘smash and grab’ adjudications have a future following a recent ruling.

Editor’s comment
Stay calm and watch the carry-on
The Crown Commercial Service has announced a £30bn contractors framework and the industry is keen to work under it. But Editor Nick Barrett advises against raising hopes too high, too soon.

News
Our regular news round up includes a think tank warning that UK infrastructure procurement processes are out of date; launch of a new government framework procurement route for contracting services; and a call for whistleblowers to come forward with tip offs about cartels.

Legal terms explained
Samantha Scott of Herbert Smith Freehills LLP explains the meanings of gross negligence and wilful default.

Guest editors
The market will decide on collaboration
Guest editors James Doe and Nicholas Downing of Herbert Smith Freehills LLP compare the approaches to collaboration of new contracts from NEC and FIDIC. Could the FIDIC drafters have been bolder, they ask.

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. Iain Bailey provides a commentary on the new FIDIC Red, Yellow and Silver Books.

Reports from the courts
Our review of the most important court cases for construction comes from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP, focussing on a Court of Session ruling highlighting that contractual rights of set-off may be used as a defence in respect of any additional assessment for payment under a payment certificate, even in the absence of pay less notices; and one showing how the drafting of the guarantee as a whole will be key in determining the differences between a guarantee and on demand bond.

Contracts monitor
Carillion puts spotlight on tendering
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his examination of the new JCT Tendering Practice Note. The Carillion collapse will bring the tendering process under fresh scrutiny, he predicts.

CL guide
CL guide to: Design liability
This instalment of the CL guide series by Ross Galbraith of DLA Piper looks at design liability of both contractors and consultants.

Procurement
Light at the end of the highways tunnel?
Highways England has suffered some well-known procurement related growing pains since being formed in 2015. But Will Buckby and Andrew Croft of Beale & Company Solicitors LLP see sound reasons to be cheerful for the future of UK roads procurement.

Modern slavery
Managing modern slavery risks in supply chains
The UK is leading the fight against slavery offences with the Modern Slavery Act 2015, says David Hansom of Clyde & Co, who examines the practical strategies for contractors to consider.

Legislation
Third party rights in Scotland – all change?
A new third party rights Act came into force in Scotland in February. Kirsty Olson of Dentons asks whether it spells the end for collateral warranties, and can third parties adjudicate?

Adjudication
Smash and grab here to stay?
Smash and grab adjudications are here to stay, argue Vijay Bange and Oliver Wiliams of Trowers & Hamlins LLP in this review of case law relating to a legitimate strategy purposely sanctioned by the Construction Act.

Insurance
Third party insurance for contractors
Insurance expert John D Wright of JD Risk Associates explains what cover is available for liability towards third parties which, although not legally demanded, is essential.

Alternative dispute resolution
Short term Brexit boost for arbitration?
Our latest alternative dispute resolution series article comes from Iain Boyle of Clyde & Co who sees a threat from Brexit to the UK’s favoured jurisdiction status for arbitration after a possible short-term spike in demand.

Editor’s comment
Carillion carnage masks PFI malaise

Editor Nick Barrett says the collapse of Carillion may have taken attention away from a highly critical report on the Private Finance Initiative from the National Audit Office that could have even greater long-term implications for construction procurement.

News
Our regular news round up focusses on the launch of updated versions of FIDIC’s ‘Rainbow Suite’ of contracts; an attack on the government’s Construction Supply Chain Payment Charter; and the launch of investigations into the collapse of Carillion.

Legal terms explained
Ibaad Hakim and Michael Mendelblat of Herbert Smith Freehills LLP explain what is meant by knock-for-knock indemnities.

Guest editor
Rise in corruption and bribery prosecutions
Guest editor Laura Lintott of Beale & Company Solicitors LLP discusses the increasing number of prosecutions related to bribery and corruption. The Serious Fraud Office (SFO) is becoming increasingly focussed on such cases, and construction companies should take great care to comply with anti-corruption legislation, she warns.

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. Ana Bonnington comments on the Autumn 2017 Budget.

Reports from the courts
In our latest review of the court decisions of most interest to construction Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP look at one that highlights the danger of conflicting and complicated drafting in contracts; and another that confirms the need to serve a pay less notice under the HGCRA applies to final or termination accounts as well as to interim payments.

Contracts monitor
An essential read for tendering
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his review of JCT’s Practice Note on Tendering. A glance at even a summary of its contents might prompt reconsideration of tendering procedures, he says.

CL guides
Guide to Brexit: Article 50 and withdrawal from the EU
Rachel Chaplin of DLA Piper looks at the potential impact of Brexit related changes in the latest in DLA Piper’s series of Construction Guides. Contractors look more at risk from a change in circumstances as a result of Brexit than employers, she warns.

Annual review
Construction Act changes loom in 2018
In this review of the main events of 2017 James Doe and Emma Kurtovich of Herbert Smith Freehills LLP focus on key developments in issues such as extensions of time and concurrent delay. Looking ahead, as well as litigation arising from the Grenfell Tower disaster, they expect a continued emphasis on increasing transparency and news of possible HGCRA 1996 changes.

Review of 2017 in Scotland
Shona Frame and Siân McNiff of CMS review the highlights in Scotland of 2017, an eventful year with developments that will be felt in 2018 and beyond. Key events included legislation that revolutionised third party rights.

Contracts
No absolute rights governing certificates
Jennifer Jones of Atkin Chambers examines the law surrounding conclusive evidence clauses, which often pass unnoticed – until it is too late. Make careful note of any obligatory time periods that might expire, she advises.

Insurance
Latent disease in employers’ liability claims
Insurance expert John D Wright of JD Risk Associates explains how latent disease is treated in employers’ liability policies. The basis on which policies is written is ‘cause arising’ which has created long-standing problems.

Adjudication
Serial adjudications – who bears the cost?
Vijay Bange of Trowers & Hamlins LLP predicts a growing number of challenges to adjudications following recent court decisions, especially where there is evidence of ‘adjudication shopping’ or adjudications being abandoned for no good reason.

Alternative dispute resolution
Adjudication enforcement decisions
In the latest article of our regular alternative dispute resolution series article Richard Kniveton of Clyde & Co examines the implications of two recent adjudication enforcement decisions.

Editor’s comment
More adjudicators needed
The costs of adjudication are under scrutiny in a government consultation, but editor Nick Barrett says rising costs do not justify more use of inexperienced and therefore cheaper adjudicators – yet.

News
Our regular news round up focusses on new research into adjudication fees; new rules for leniency applications from cartels; and a report on the impact of retentions on the industry.

Legal terms explained
Summary judgment is explained by Philip Parrott and Michael Mendelblat of Herbert Smith Freehills LLP.

Guest editor
Remember: always read the contract
Guest editor Michael Sharp of Herbert Smith Freehills LLP says a recent Supreme Court warning to always read the contract should be taken to heart by lawyers as well as signatories to contracts. Parties are free to allocate risk as they see fit, and the courts will uphold such clauses.

Legislation state of play table
Clyde & Co present our regular round up of the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Ian Boyle provides a commentary on the interim National Infrastructure Assessment.

Reports from the courts
Our regular round up of the court cases of most interest to construction comes from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP and focuses on a case highlighting that a high burden of proof of oppressive and unreasonable behaviour will be needed to obtain injunctive relief on those grounds in adjudication.

Contracts monitor
Guidance Notes seldom read
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, concludes his scrutiny of the JCT’s Repair and Maintenance Contract (Commercial) 2016 with a warning that contracts must be read as they change to reflect new legislation and insurance practice.

CL guides
Guide to defects provisions in contracts
Sarah Nunnery-Jones of DLA Piper continues our Construction Law Guides series with a look at defects provisions in the main contract forms.

Contracts
NEC4 increases consultants’ risk
Will Buckby and Andrew Croft of Beale & Company Solicitors LLP examine the new NEC4 Professional Services Contract and find the changes from the previous contract to be more than simply an evolution. Consultants face increased potential risk, they warn.

Private finance
Bringing existing PFI contracts back in-house
Private finance initiative contracts came under threat during the party-political conference season. Davinia Cowden of CMS details the practical problems that would be faced in bringing them back into public ownership.

Exemption clauses
Exemption clauses, risk allocation and ordinary language
Joanne Maclean and Suriya Edwards of Geldards LLP analyse a recent case that underlines the courts’ support for clauses in contracts that are negotiated between parties of equal bargaining power.

Duty of care
The Bolam test and Montgomery in construction
David Pliener of Hardwicke examines a court ruling in a healthcare industry dispute that has potential implications for the duty of care owed by professionals in construction. A construction test case is inevitable soon, he warns.

Insurance
Contractors’ product liability
Insurance expert John D Wright of JD Risk Associates details what is covered under contractors’ product liability policies. Cover for damage to the product itself is usually excluded, but separate cover is available.

Alternative dispute resolution
NEC4 – embracing ADR?
Russell Banfi of Clyde & Co analyses some little reported features of the new NEC4 suite of contracts relating to dispute resolution and avoidance in our latest alternative dispute resolution series. Some new issues are raised, he argues.