Construction Law: April 2023

Editor’s comment
No sign of infrastructure gear change
Editor Nick Barrett laments the lack of urgency in infrastructure investment shown by government, as highlighted by a National Infrastructure Commission report. Threats to delay HS2 are another example of this snail’s pace.

Our news round up reports on one of the biggest fines ever for health and safety breaches; a warning from government’s spending watchdog the National Audit Office that HS2 delays will add to costs; and fines of some £60 million for bid rigging among demolition contractors.

Legal terms explained
David Nitek and Noe Minamikata of Herbert Smith Freehills LLP explain what relational contracts are.

Guest editor
Paying for past mistakes: the developer remediation contract
Guest Editor Rachel Chaplin welcomes the positive steps being taken in the wake of the Grenfell Tower tragedy to improve fire protection and safety of buildings. But shouldn’t government be shouldering some of the blame and cost because of its own regulatory failures, she asks?

Legislation state of play table
Our regular update of the progress of legislation and government procurement related developments compiled by Construction Law staff.

Reports from the courts
Our Regular round up of the court cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine the decision in an appeal that emphasises the need for parties to either raise issues in respect of the validity of payment applications/payment notices or to reserve their positions without delay; and another that shows the current judicial uncertainty regarding the extended limitation periods under the Building Safety Act 2022.

Developments expected during 2023
Alan Stone, Tom Green and Zack Gould Wilson examine some significant developments in the construction industry last year, and take a look ahead at some key developments expected in 2023.

CL guides
Rachel Chaplin and Cai Cherry of DLA Piper explain UK insolvency processes.

Limitation Periods
Defective Premises Act 1972: A new dawn for historic claims.
The Building Safety Act has extended limitation periods for claims under the Defective Premises Act. Stephanie Geesink and Dom Turner-Harriss of Watson Farley & Williams LLP examine the attitude of the courts to parties attempting to tack onto ongoing proceedings new claims that were previously time barred.

Tort of nuisance
The tort of nuisance – the categories are not closed
Chris Bryden of 4 King’s Bench Walk and Georgia Whiting, Legal Counsel at the Ardmore Group, consider a Supreme Court decision that provides a general restatement of the fundamental principles of the law of nuisance, in a follow up to their previous article on the Court of Appeal decision in the same case.

Contract management – best practices to limit the risk of disputes
Guillaume A Hess of King & Spalding argues that best practice in contract management is essential for successful administration of projects, but also to minimise the risk of disputes arising. In the first of a two part series, he warns that there is no one size fits all approach.

Contract terms criticised by tree felling inquiry
Amey found itself embroiled in a long running dispute over a tree felling programme that an inquiry says it partly caused through the terms of a contract that it signed. The experience suggests that risk management needs to consider the impact of works on local feelings.

The Construction Leadership Council: a busted flush or a potent force for change?
Set against its own targets the Construction Leadership Council’s performance has been inadequate and it fails to address the issue that fundamental and radical changes in construction procurement and payment are needed, argues Professor Rudi Klein of Klein Legal who suggests looking to Singapore for pointers to the way forward.

Insuring the design risk – a minefield for all parties
Insurance expert John D Wright of JD Risk Associates examines how claims relating to design issues are resolved. Design risk is a minefield for all concerned, but particularly the insurers, he explains.

Alternative dispute resolution
“Merchants of peace” in our global supply chains
Our latest Alternative Dispute Resolution series article comes from Tracey Summerell of Dentons UK and Middle East who salutes the International Chamber of Commerce’s 100 year contribution to dispute prevention.