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Reports from the courts: April 2013

Our latest round up of the court cases of most interest to construction comes from Will Buckby and Andrew Croft of Beale and Company who focus on an appeal court ruling that confirms the dangers of agreeing an absolute obligation to complete a project by a specific date; and a case that underlines uncertainties that may arise under NEC3.

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State of play table 180

This table, prepared by Clyde & Co, provides a regularly amended guide to new and proposed legislation that will affect the construction industry. In addition to EU Directives and UK legislation, the table includes notes highlighting discussion papers issued by both government and non-government organisations, and commentary on the latest developments.

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Display Energy Certificates

Display Energy Certificates (DEC) show the energy performance of a building based on actual energy usage. The current legislation requires that buildings over 1,000m² occupied by the public sector prominently display a DEC.

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Infrastructure routemap: go with the flow(chart)

Guest editor Ian Stubbs of Pinsent Masons examines the government’s draft procurement routemap to try and see where we are going with infrastructure delivery. The key role of the contract has been bypassed, he argues.

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Legal terms explained: Insolvency

Insolvency has become an increasingly important issue in the construction industry as a consequence of the recession. A company is deemed to be insolvent when it satisfies one of the two tests under s 123 of the Insolvency Act 1986 (IA86). Section 123(1) of IA86, known as the ‘cash flow’ test, is met if a statutory demand for over £750.00, judgment or court order is unsatisfied or the court comes to the conclusion that the company is ‘unable to pay its debts as they fall due’.

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Dispute resolution – getting a grip

Regular contributor David Mosey fills our guest editor slot for the last time before retiring from Trowers & Hamlins after leading their Projects and Construction Group for over 20 years, to take up a professorship at King’s College, London, as Director of its Centre for Construction Law. He argues that facilitated negotiation and mediation under partnering contracts can be the best solution for dispute management.

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Reports from the courts: March 2013

Our regular round up of the court decisions of most interest to construction from Will Buckby and Ibaad Hakim of Beale and Company focuses on a case concerning liability for the failure of an under designed platform; and another where an adjudicator changed his mind.

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Reality checks a good idea

Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his review of the JCT’s new guide to tendering procedure, which suggests some additions that could be made in the next Construction Act revision.

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PF2 – A new beginning for PFI?

Tom Pemberton and Pasquale Pisanelli of Beale and Company outline reforms to the private finance initiative, PF2, that are hoped to generate increased infrastructure investment. Although the new regime is in use for school building, doubts remain whether they will attract investment funds.

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Consistency on-demand or guaranteed?

Kirstin Bardel of Ashurst takes a detailed look at a recent Court of Appeal decision in relation to the differences between on-demand bonds and guarantees, and considers its implications for construction.

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