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Reports from the Courts: August/September 2023

Our latest round up of the cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP includes a judgment providing a rare example of the circumstances in which the courts may be minded to order a stay of execution; and another that provides a reminder of the importance of clear contractual drafting.

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Efficient project management an elusive quality

HS2 is never out of the news for long, having been subject to a long series of delays, cuts, redesigns and reductions in scope, and critical reports from various overseers of public spending. July saw two reports that have added to the criticism but done little to inspire confidence that anything will improve soon.

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Construction Law Guide to: Claims for time, loss and expense

Our latest Construction Law Guides series article comes from Abigail Holmes of DLA Piper who explains the complexities surrounding claims for time, loss and expense.

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The Construction Playbook and effective contracting: moving the dial from vision to reality

Andrew Croft of Beale & Co, and Anna Kettle and Helen Field of Atkins warn that contracts are becoming more onerous and being used increasingly to shift risk, which does not deliver best value or best solutions. A new approach to contracting is demanded, which the government’s Construction Playbook points towards.

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Why fluctuation clauses must now be a central feature in JCT contracts

Phil Caton of Aaron & Partners argues that against a background of high construction price inflation contributing to a rising number of contractor insolvencies, fluctuation clauses should be a central feature in JCT contracts.

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Refinements and Reforms of the Arbitration Act 1996: Reforming Landmark Legislation

Vijay K Bange and Paul-Raphael Shehadeh of Duane Morris consider the likely reforms and refinements proposed to the Arbitration Act 1996 following consultations. Proposed reforms represent a welcome update to this landmark legislation, they argue.

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Timing and validity of pay less notices

Stephen McKenna of Quigg Golden analyses a case that highlights the importance of the timely sending of valid payment certificates and pay less notices. Paying parties under construction contracts should ensure that for any pay less notices it issues to be deemed valid, they must refer to respective payment cycles.

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Employer’s Liability and Disease Claims

Insurance expert John D Wright of JD Risk Associates examines issues surrounding employer’s liability insurance and disease claims, which have been a problem for many years and look like keeping the courts busy for years to come.

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Can one adjudication decision be set off against another?

A recent decision in FK Construction Ltd v. ISG Retail Ltd [2023] EWHC 1042 (TCC) provides a useful reminder that limited circumstances apply for set-off to arise in adjudication enforcement, as Millie Leonard and Amanda McGrath of Dentons UK and Middle East LLP report.

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New and proposed legislation: State of play table 282

This table, prepared by Barrett Byrd Associates, 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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