Construction Law: August/September 2021

Editor’s comment
Report highlights need for procurement overview
Editor Nick Barrett says the Latest National Audit Office report highlights yet again the need for procurement reform. Lessons may have been learned from the Carillion collapse.

This month’s news roundup features a warning that material shortages and cost pressures are set to result in a rise in construction disputes. In addition, lawyers respond to the new Building Safety Bill and the Civil Justice Council has declared that compulsory alternative dispute resolution is lawful.

Legal terms explained
Noe Minamikata and Michael Sharp of Herbert Smith Freehills LLP explain what is meant by novation.

Guest editor
The role of export credit agency financing
Guest editors Lauren Davies, Counsel, and Vanessa McLellan of Vinson & Elkins RLLP argue that export credit should not be overlooked as a source of funding or support for large projects.

Legislation state of play table
The latest in our regular update on the progress of legislation and regulations affecting construction comes from Dentons UK & Middle East LLP. Tracey Summerell and Akin Akinbode provide a commentary on the Building Safety Bill.

Reports from the courts
Our regular round up of the court cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine a decision where the judge criticised claimants for not using adjudication; and another that highlights the dangers of oral contracts.

In-person and virtual evidentiary hearings: are hybrid hearings the way forward?
Virtual hearings have proven that they can work during a pandemic but are they here to stay? Scott Stiegler and Ben Grunberger-Kirsh of Vinson & Elkins argue that hybrid models combining in-person and virtual evidence might become the norm.

CL guides
Price and payment
The latest in our Guides to Construction Law from DLA Piper whose Clare Rushton explains the often thorny issues of price and payment in contracts.

Retrospective liability claims: what you need to know and where to start
Barry Hembling and Hazel Boland-Shanahan of Watson, Farley & Williams LLP analyse proposed changes to building safety legislation ushered in by the Grenfell tragedy which will apply retrospectively, and could allow claims on disputes where the limitation period had expired.

Promoting ethical purchasing decisions
Construction is at the forefront of a procurement revolution that will enforce proper attention being given to the ethical sourcing of materials and services. Mark Fletcher of Russell-Cooke LLP warns that the ability of employers to enforce their values is still constrained by legal and commercial considerations.

The root cause of evil
Vijay K. Bange and Tanya Chadha of Duane Morris explore trends in disputes emerging in the energy sector across four jurisdictions – the United Kingdom, Middle East, United States and Caribbean and Latin America.

Economic loss
Why economic loss is an issue in claims
Jane Hughes of Trowers & Hamlin LLP examines the often difficult to explain issues surrounding the concept of economic loss. Sustained pressure on the legal principles behind it is expected, she warns.

Disclosure, waiver and the Insurance Act 2015
Insurance expert John D Wright of JD Risk Associates asks what difference has been made by changes in the Insurance Act 2015 to the principle of ‘good faith’ as it applies to policies. Bias towards insurers might have been removed but legal disputes still arise, he cautions.

Alternative dispute resolution
New Digital Dispute Resolution Rules
In our latest Alternative Dispute Resolution series article Tracey Summerell of Dentons UK and Middle East LLP says ‘new tech’ like smart contracting is developing rapidly and is set to disrupt the industry’s approach to both contracting and dispute resolution.