Construction Law – December 2021

Editor’s comment
Construction called to perform on net-zero plans
Construction will be central to plans to achieve net-zero carbon by 2050, and the industry is poised to respond, says Editor Nick Barrett, who warns that construction contracts are expected to contain decarbonisation clauses in future.

This month’s news roundup features details of a landmark net zero roadmap for construction published at COP26, response to government pledges on unsafe cladding and an update on a dispute over problems with Glasgow’s Queen Elizabeth Hospital.

Legal terms explained
Lucinda Hill and Sienna Kim of Herbert Smith Freehills LLP explain contractual time bars.

Guest editor
The Glasgow Climate Pact – What can the construction industry contribute?
Guest Editors Shona Frame and Emma Schaafsma of CMS ask what contribution construction can make to combatting climate change following the signing of the Glasgow Climate Pact at COP26. Major changes will be needed, along with a lot of innovation and investment, and contractual mechanisms to force contractors to seek greener suppliers can be expected.

Legislation state of play table
Our regular update on the progress of legislation affecting construction as it passes through the legislative process, compiled by Construction Law staff, with a Commentary by News Editor Steve Dale.

Reports from the courts
Our regular round up of court decisions of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine a case showing the importance of giving notice effectively when disputing a final statement; and an appeal court ruling confirming that enforcement of an adjudication decision by an insolvent claimant is possible, albeit in limited circumstances.

Book Review
Construction Disputes – Seeking Sensible Solutions
Middle East based mediator and arbitrator Mark Fraser of Fraser & Co reviews Construction Disputes – Seeking Sensible Solutions by Wayne Clark, which he says is recommended reading for anyone involved in construction and engineering.

CL guides
Procurement routes
In our latest Guide to Construction Law series article Peter Lowe of DLA Piper summarises the conventional construction procurement routes in the UK.

A game of chess – insolvency vs. adjudication
Theresa Mohammed and Laura Lintott of Trowers & Hamlins LLP analyse the possible clash between the insolvency and statutory adjudication regimes where a party to a dispute faces insolvency. Case law provides clarity on the right to adjudicate, but practical problems might remain.

The Engineer, aka FIDIC Kingpin
In the second article of our series on FIDIC contracts David Brown and Barnaby Sandy of Clyde & Co examine the role of the Engineer. The Engineer’s role is changing but it can still have a ‘piggy in the middle’ feel about it.

Super-inflation and the construction and energy sector in the UK
Karen Gough of 39 Essex Chambers analyses a seldom reported fact about adjudication, that despite it being established that an adjudicator can only deal with a single dispute in an adjudication, satellite disputes and jurisdictional challenges continually arise around the issue.

The elastic band of contractual flexibility and Covid-19
Alexander Slade of Vinson & Elkins asks whether the flexibility and collaboration that has been displayed by parties to contracts during the Covid-19 pandemic heralds a new dawn for industry relationships; or will things snap back under the pressure, leading to an increase in disputes?

Statutes of Limitation – Still Adapting
Our insurance expert John D Wright of JD Risk Associates examines the impact of statutes of limitation on construction insurance. Post Grenfell, a Building Safety Bill will extend the long stop time limit from six years to fifteen years in respect of defects in buildings which render them unfit for habitation under the Defective Premises Act 1972 and introduce retrospective liability.

Alternative dispute resolution
Mainstreaming ADR: feedback and ideas
In our latest Alternative Dispute Resolution series article Tracey Summerell and Akin Akinbode of Dentons describe their team’s response to the Ministry of Justice call for evidence on dispute resolution.