Construction Law: December 2020

Editor’s comment
Early estimates only part of the procurement problem
Editor Nick Barrett argues that a new National Audit Office report provides backing for industry wide calls for more collaboration, transparency and honesty to improve the UK’s major procurement problems.

This month’s news roundup includes details of a National Audit Office report highlighting key lessons for improved major project delivery; advice on top actions for the sector ahead of the end of the Brexit transition period; and an update on financial conduct investigations into former Carillion directors.

Legal terms explained
Michael Sharp and Adya Garg of Herbert Smith Freehills explain what is meant by global claims in construction disputes

Guest editor
Virtual hearings: inflammatory markers in favour of in-person hearings
Guest Editor Hamish Lal of Akin Gump Strauss Hauer & Feld takes issue with the growing view that ‘virtual hearings’ are always an adequate alternative to an in-person hearing. Sometimes an in-person hearing should take precedence, he argues.

Legislation state of play table
Our regular round up of the progress of legislation affecting construction as it passes through legislatures comes from Dentons UK and Middle East LLP. Akin Akinbode and Tracey Summerell ask what happens to UK law after 31 December 2020?

Reports from the courts
Our regular review of the court designs of most relevance to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, fincluding a case that will be of growing interest as insolvencies rise; and another that is a stark reminder to construction companies of the importance of conducting thorough due diligence on their suppliers and their tax arrangements.

Book Review
Forensic approach lays bare Carillion scandal
Leading dispute resolution specialist Amanda Bucklow examines a book on the Carillion collapse, timely published as the Financial Conduct Authority accuses former directors of the company of acting recklessly and in a misleading way.

CL guides
Good faith
In our latest Construction Law Guides series Clare Rushton of DLA Piper examines what is meant by the concept of good faith. The views of the courts are still evolving, she explains.

The contractual approach to BIM and Common Data Environments
The use of Building Information Modelling is becoming standard on projects and Common Data Environments (CDEs) are increasingly being used to promote more efficient information sharing. Kathryn Willis and Andrew Croft of Beale & Company Solicitors LLP urge caution in hosting CDEs.

The prevention principle
Lucinda Hill and James Doe of Herbert Smith Freehills LLP consider what the ‘prevention principle’ is and how it has developed, exploring how, and to what extent the principle applies to both construction and shipbuilding contracts.

Poor Performance in Energy from Waste Plants
Cecily Davis of Fieldfisher looks at how contracts address the issues of time and quality following some high profile disputes in the energy from waste and data centre sectors.

Challenging times ahead for construction
Jonathan Douglas, Nick Pinder and Mariya Rankin of Eversheds Sutherland take a look ahead to the legal, political and economic factors likely to shape construction in 2021. Times will be challenging, they caution, but there will be areas of growth.

High Court test case – not conclusive
Insurance expert John D Wright of JD Risk Associates analyses recent High Court decisions that clarify some legal issues of interest to those hoping for cover from the impact of Covid-19 on their ability to fulfil contracts. Some policyholders can take some comfort from the decisions, he says.

Alternative dispute resolution
Increasing diversity in dispute resolution
In our latest alternative dispute resolution series article Tracey Summerell of Dentons UK and Middle East LLP argues that increasing gender diversity could benefit all dispute resolution processes.