Contents

In this month’s issue…

Editor’s comment
Action looms on Protocol
A review of the Pre-Action Protocol looks likely soon. Editor Nick Barrett echoes a TeCSA conclusion that only a light handed approach is needed to revise it.

News
Our news round up focuses on details of proposed JCT suite revisions;  TCC rejection of a use of natural justice arguments against an adjudicator’s decision; and a court ruling supporting a ‘common sense’ approach to a claim for additional interim payments.

Legal terms explained
Sam Wigley of Pinsent Masons explains implied terms.

Guest editor
The smash and grab TCC: a case of lost direction?  
‘Smash and grab’ adjudications may be undermining the cash flow aims of the Construction Act, but the Court of Appeal may have provided an opportunity for a brave employer to overturn this, says guest editor Richard Booth of Holman Fenwick Willan.

Legislation state of play table
Clyde & Co round up the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Lois Putnam comments on the absence of an approved code of practice accompanying the new  CDM Regulations.

Reports from the courts     
Our round up of key court decisions from Andrew Croft and Simii Sivapalan of Beale & Company, includes an appeal court decision relating to pay less notices; and a case highlighting that the wording of limitation and exclusion clauses should be considered carefully.

Contracts monitor
Omission not good enough
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of RIBA’s Concise Building Contract. Among the problems found are some opaque sections, potentially problematic omissions, and meetings whose agreements might conflict with contract terms.

The year ahead
Expected legal and litigation trends in 2016
Barrister David Pliener of Hardwicke Chambers looks into his crystal ball and ponders what 2016 might hold for construction law. He asks whether costs will drive litigants away from the courts. Prepare for an imminent battle over the Pre-Action Protocol, he warns.

Arbitration
Arbitration: a new beginning?
The RICS has launched a new service that aims to provide a more cost effective approach to arbitration. Shy Jackson of Pinsent Masons, a member of the working group that devised the new service, explains how it works and the continuing attractions of arbitration, 20 years after the Arbitration Act.

Legislation
Approaching BIM – a legal perspective
Building Information Modelling (BIM) will be compulsory on public sector projects from April, but is the industry ready? Perhaps not fully, but Andrew Croft and Will Buckby of Beale & Company find that the UK is an international leader in BIM take-up in this review of where construction has got to.

Expert witnesses
Experts have lessons to learn
Expert witnesses attracted a fair amount of judicial comment over the past year. Ann Levin and Patrick Stone of Herbert Smith Freehills review the most recent cases providing guidance on a number of aspects of using expert witnesses.

Set-off
Set-off to apply to third parties
Suriya Edwards and Julie Teal of Withers review the state of play with set-off which they argue can be used as a cash flow booster as well as a remedy to contractors. A recent case reviewed extends the application of the set-off rule to apply to third party agreements.

Insurance
The implications of claims made policy wordings
Despite improvements in recent years, claims made policy wordings can conceal pitfalls for the unwary. Insurance expert John D Wright of JD Risk Associates advises on practical steps to minimise the risks.

Alternative dispute resolution
It’s not how you got there; it’s where you end up
In our latest alternative dispute resolution series article Rachel Chaplin of Clyde & Co examines the latest court ruling on an adjudication involving an oral contract.

Editor’s comment
A risk worth taking?
Transformation projects pose the biggest risks according to a National Audit Office report on major infrastructure delivery. Editor Nick Barrett says any risks inherent in trying to transform infrastructure procurement have to be taken.

Legal terms explained
Hannah Wennell of Pinsent Masons explains penalty clauses, a topic where there is some recent case law.

Book review
Janey Milligan, Managing Director of Construction Dispute Resolution, reviews A Practical Guide to Construction Adjudication by James Pickavance, which deserves to become a staple on industry bookshelves.

Guest editor
Un-Belize-able: the diminishing role of commerciality
Parties will have to live and die by the wording of their contracts following an apparent Supreme Court volte-face on how contract terms are to be determined, warn guest editors Rachel Ansell QC and Matthew Thorne of 4 Pump Court.

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, whose Chris Kerr comments on the merger of Infrastructure UK and the Major Projects Authority to create the new Infrastructure and Projects Authority.

Reports from the courts
Our round up of the key court decisions affecting construction from Andrew Croft and Simii Sivapalan of Beale & Company, includes a case highlighting that a limitation clause does not remove liabilities to all parties on a contract; and another where a court considered the late payment provisions of the ‘Construction Act’ where insolvency was a risk.

Contracts monitor
Mixing tenses has no place in contracts
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of the RIBA Concise Building Contract 2014. Some curious wordings leave some questions unanswered, he finds.

Adjudication
Key adjudication questions still unanswered
Last year was a busy one for adjudication cases coming to court. Lawrence Davies and Matthew Friedlander of Pinsent Masons review some of the key cases and the future impact they will have.

Review of the year
Review of the year in Scotland
Shona Frame and Madeleine Young of CMS review the main events in construction law in Scotland during 2015. A highlight was a rare example of an NEC contract being considered by the courts.

Interim payments
Payment issues clarified
Doug Wass of Macfarlanes LLP welcomes the clarity on interim payments provided by recent court decisions. Pay less notices that set out a revaluation of work are valid, employers will be pleased to learn.

Contract administration
Get with the programme!
Is incorporating the programme into the construction contract a good idea? VanWyck Johnson of Clyde & Co warns perhaps not, in this analysis of the value of effective programming.

Arbitration and insolvency
Insolvency Rules vs arbitration – which prevails?
Vijay Bange of Trowers & Hamlins analyses a dispute involving an insolvent contractor that provides guidance on whether the Insolvency Rules or an arbitration clause should apply. Arbitration prevailed so check your contract documentation, he urges.

Insurance
Litigation to fall under new Insurance Act
Insurance expert John D Wright of JD Risk Associates looks at the new Insurance Act coming into force this year, which should help policyholders and reduce litigation. The courts face a lengthy job of interpretation however.

Alternative dispute resolution
RICS and the Goldilocks principle
In our latest alternative dispute resolution series article David Owens of Clyde & Co examines the new, hopefully faster, arbitration service from the RICS.