Construction Law January/February 2021

Editor’s comment
Covid procurement highlights need for reform
Editor Nick Barrett argues that the UK’s pandemic response throws up the need for procurement reform.

This month’s news roundup includes a warning that construction disputes are set to rise this year due to Covid disruption, as well as details of reforms to the Prompt Payment Code and the announcement of a new construction products regulator to improve building safety.

Legal terms explained
Kemi Wood of Herbert Smith Freehills explain what is meant by collateral warranty.

Guest editor
Prolongation and fair recourse for consultants
Guest Editor Will Buckby of Beale & Company Solicitors LLP argues that many bespoke consultancy appointments are unacceptably harsh in the way they treat claims resulting from prolongation or delay outside of the consultant’s control. Consultants should take a robust stance to negotiate appropriate clauses within their appointments entitling them to additional fees and extensions of time in the event of prolongation or delay.

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. Mark Macaulay considers the impact of the new Construction Playbook.

Reports from the courts
Our regular review of the court decisions of most relevance to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who look at a decisions showing that the courts will not enforce adjudication decisions where manifest injustice can be demonstrated; and another highlighting the need for clear drafting to permit the omission of works from a contractor.

Reluctant passengers on the virtual disputes journey?
The global pandemic has forced the courts, arbitral institutions, arbitrators, adjudicators and practitioners alike to embrace technology out of necessity rather than choice. Vijay Bange of Duane Morris highlights some of the issues being raised.

CL guides
The latest CL Guide comes from Naithan McBride of DLA Piper who examines the impact of Brexit. Final outcomes are not yet known, but key likely impacts can be anticipated.

Review of 2020
Seminal judgements from the Supreme Court
Despite Covid disruption the Supreme Court still managed to hand down some key judgements during 2020 which Hamish Lal of Akin Gump Strauss Hauer & Feld focusses on as highlights of the year.

Review of the year in Scotland
Collaboration helps Scottish construction weather Covid
A strengthened spirit of collaboration across the construction industry in Scotland was one of the positive features of a testing year highlighted in this review of 2020 from Shona Frame, Shona McCusker and Lisa Lennox of CMS.

Construction Playbook
Construction Playbook endorses FAC-1
Professor David Mosey, Centre of Construction Law, King’s College London analyses the government’s new Construction Playbook that will govern public works contracting. Promoting collaborative procurement and long term contracts are among policies endorsed in a Compact with Industry.

Insolvency landscape changed by legislation
Tim Barwick of BDB Pitmans draws a distinction between changes introduced by insolvency legislation in 2020 that are temporary in effect and those that are intended to be permanent. One of the permanent measures represents a significant restriction on the parties’ freedom to contract, he argues.

Genoa – A Bridge Too Far?
Insurance expert John D Wright of JD Risk Associates considers the likely impact on insurance of the Morandi Bridge collapse which he says was a classic accident waiting to happen. Compensation payments have yet to be determined and the methodology for determining liability will be scrutinised by insurers everywhere.

Alternative dispute resolution
The witness’s truth – or a version of the truth?
Our latest Alternative Dispute Resolution series article comes from Tracey Summerell of Dentons UK and Middle East LLP who examines findings of a recent report on the accuracy of fact witness memory in arbitrations.