Construction Law: August/September 2020

Editor’s comment
Multi-challenges forcing pace on procurement reform
Amid signs that procurement is at last rising up the political agenda, Editor Nick Barrett reports that increasing pressures are forcing the pace of change. Using tribunals instead of the High Court for challenges to contract awards is one change that has been suggested.

This month’s news roundup features details of the new draft Building Safety Bill, hopes for the wider adoption of Project Bank Accounts following developments on High Speed 2 and guidance on future proofing construction contracts in light of Covid-19.

Legal terms explained
Michael Sharp of Herbert Smith Freehills LLP explains virtual signing and electronic signing.

Guest editor
Connectivity and collaboration to keep construction safe
Guest Editors Kathryn Noble, Amanda Stubbs, and Charlotte Clayson of Trowers & Hamlins LLP say construction could benefit from Covid-19’s impact on adoption of digital technology. As well as fostering innovation, new legal issues will be created, they warn.

Legislation state of play table
Dentons UK and Middle East LLP provide our regular round up of legislation affecting the UK as it passes through the legislative process. Tracey Summerell outlines the implications of the The Corporate Insolvency and Governance Act 2020.

Reports from the courts
Our regular round up of the cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, focusing on one that underlines the courts’ reluctance to support challenges to the jurisdiction of adjudicators; and another that reinforces the position that ‘the prevention principle is not an overriding rule of public or legal policy’ and that it is possible to contract out of its application.

Book review
High praise for invaluable Construction Law reference book
Professor David Mosey, Director, King’s College London Centre of Construction Law and Dispute Resolution, reviews the latest edition of Julian Bailey’s book Construction Law which is praised for its comprehensive coverage, scholarship and good value.

CL guides
Alliance Contracting
Our latest CL Guide is from Rachel Chaplin of DLA Piper and explains what Alliance Contracting means and how it works. Changes in approach are needed to make it successful.

Changes to the UK Insolvency Regime and the Impact on Supply Contracts
Vijay Bange and Candice Light of Duane Morris describe how the new insolvency legislation making it difficult or impossible for suppliers to terminate contracts where a company has entered into a defined insolvency procedure will work. Far reaching impacts can be expected.

How are construction disputes evolving?
The findings of two major surveys reveal a changing pattern of disputes in construction, as Amy Roberts, Adrian Bell and Shona Frame of CMS Cameron McKenna Nabarro Olswang LLP explain. The impact of Covid-19 and Brexit are still to be felt, they warn.

Fire safety
Form EWS1 – a better solution needs to be found
Will Buckby and Ian Masser of Beale & Co warn consultants that they should avoid taking on work under Form EWS1 – designed to provide assurance that a high rise building is fire safety compliant – which imposes unlimited liability on them. Professional indemnity insurance could be compromised by its use, they advise.

Measures to help the progress of DCO projects
Infrastructure planning law specialist Angus Walker of BDB Pitmans says keeping planning and consenting of nationally significant projects going will help reduce the depth of the coming recession as well as speeding up the recovery. There are practical steps to be taken that will help.

Costs – the hidden element
Insurance expert John D Wright of JD Risk Associates looks at the extent to which insurance policies offer cover for costs, such as legal costs, in addition to losses suffered as a result of an insured event occurring. Policies should be read with care, he warns.

Alternative dispute resolution
Make mediation compulsory?
In the latest of our alternative dispute resolution (ADR) series, Tracey Summerell of Dentons UK and Middle East LLP asks whether it is time for mediation to be made compulsory.