Construction Law August/September 2022

Editor’s comment
Financial regulator on trail of Carillion
Editor Nick Barrett argues that words addressed to accountants by regulators looking at the Carillion collapse should also be taken on board by construction.

This month’s news roundup includes details of a landmark cladding case that will be significant for many involved in similar disputes, as well as a report that shows a decline in profit warnings among large construction companies – while smaller firms continue to struggle – and insights from the Technology & Construction Court’s latest annual report.

Legal terms explained
Lucinda Hill of Herbert Smith Freehills LLP explains what is meant by Defective Works.

Guest editor
Leadership, regulation and a film about Notre Dame
Guest editor Amanda Bucklow, a widely respected Independent Commercial Mediator, makes a plea for considering the benefits of using mediation. Without mediation’s confidentiality and without-prejudice nature, many disputes would never reach settlement, she argues.

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction is compiled by News Editor Steve Dale, who comments on the growing consensus behind the idea of mandatory whole life carbon assessments in the built environment.

Reports from the courts
In our latest update on the court decisions of most interest to construction Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP examine a case that underlines the importance of objectively clear and unambiguous Pay Less notices; and one that summarises the test that the court will consider when determining applications for freezing injunctions.

Net Zero Strategy deemed unlawful
Government’s Net Zero Strategy has been ruled inadequate and unlawful by the High Court. News Editor Steve Dale explores the ruling and asks what implications there could be for the construction sector.

CL guides
CDM Regulations
In our latest construction guides series from DLA Piper, Rachel Chaplin explains how the Construction (Design and Management) Regulations 2015 work and the obligations placed on Dutyholders as defined by the Act.

Building safety
High Noon for new building safety sheriff?
Barrister Philip Bambagiotti of 3PB considers the recently assented Building Safety Act 2022. A more rigorous approach to building safety is signalled, but he doubts that the Act will do what is needed.

Suspension of construction contracts
Thomas Bilton and Jane Hughes of Trowers & Hamlins LLP examine Employer’s contractual suspension rights under the most commonly used building contracts, namely the JCT Design and Build contract (2016 edition), the NEC4 engineering and construction contract and the FIDIC 2017 ‘Red Book’ contract.

Playing the adjudication game
Karen Gough, a barrister at 39 Essex Chambers London, examines a recent case that contributes to the growing body of decided cases supporting the integrity of the adjudication regime.

Technology in construction disputes – managing data and proving claims
The advantages of using new data gathering technologies are many, but as Shona Frame, Jane Fender-Allison and Duncan Turner of CMS point out in this analysis of the opportunities, a range of new issues are created.

Building Safety Act may reduce insurance costs – in the long term
Insurance expert John D Wright of JD Risk Associates examines the insurance implications of new post-Grenfell safety laws. Higher prices and more onerous terms can be expected, he warns.

Alternative dispute resolution
Gender parity in expert appointments: an issue for us all
Our latest Alternative Dispute Resolution series article comes from Tracey Summerell of Dentons UK and Middle East who describes initiatives to increase gender parity in appointments of expert witnesses.