Construction Law: July 2021

Editor’s comment
Contracts need risk management
A survey from Arcadis shows that poor understanding and use of contracts is the major cause of disputes. Editor Nick Barrett says old attitudes to understanding what contracts mean and how to use them as management tools represent poor risk management.

This month’s news roundup features a report showing that the average value of construction disputes rose to its highest level ever last year; a warning that an increase in insolvencies could be on the horizon due to tender price inflation; and details of the Technology & Construction Court’s annual report.

Legal terms explained
Rahul Prakash of Herbert Smith Freehills LLP explains how limitation periods function.

Guest editor
Cladding- papering over the cracks?
Barristers Chris Bryden and Georgia Whiting of 4 King’s Bench Walk use the Guest Editor slot to analyse some of the who-pays for remedial cladding post-Grenfell questions that are still unanswered. Two recent court decisions of relevance to professionals faced with the cladding conundrum are worth considering, they argue.

Legislation state of play table
The latest in our regular update on the progress of regulations and legislation affecting construction comes from Steve Dale of Barrett Byrd Associates. Adam Brown of Dentons provides a commentary on the Group of Seven and Net Zero.

Reports from the courts
In the latest of our Reports from the Courts series of articles Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP examine a case reminding parties to ensure strict compliance with contractual notice provisions, and be wary of ‘final and binding’ clauses; and another judgment that is a clear reminder of the uncertainty that can arise when works commence prior to the execution of a formal contract and the risks of letters of intent.

Digital Technology in Construction: An Opportunity for Change
Risk experts on insurance and construction respectively, Graham De Roy and Stephen Woodward consider how digital working offers opportunities to correct the loss of appetite by the insurance industry for insuring construction industry risk.

CL guides
Time in construction contracts
The latest of our guides to construction law series comes from Rachel Chaplin of DLA Piper who explains the role of time in construction contracts.

Witness statements
New rules on witness statements
Judges had become unhappy with witness statements, particularly because of extensive referencing of documents, mixing facts with arguments and lack of use of witness’ own words, so have instituted reforms, as Theresa Mohammed, Laura Lintott and Megan Hulme of Trowers & Hamlins LLP explain.

Good faith
Good Faith, Mutual Trust and Cooperation – Oh My!
Good faith type arguments have been coming to the fore in disputes over the past five years, as Katherine Doran of HFW LLP highlights as she reviews case law to find guidance on how the courts might interpret mutual trust and cooperation obligations in NEC contracts.

Too late to join the DAB party?
Barrister Karen Gough of 39 Essex Chambers, also a Chartered Arbitrator and accredited Adjudicator, asks whether the JCT has found a winner with its hybrid DAB/Adjudicator dispute avoidance and statutory adjudication offering. There are risks in the JCT DAB structure that will need to be assessed when tested in the Courts, she warns.

Product liability insurance
Insurance expert John D Wright of JD Risk Associates examines product liability insurance, which has come under the spotlight following the Grenfell tragedy. Higher insurance costs and restricted cover from policies are to be expected, he warns.

What cover do lenders want from a borrower developer?
Anne Wright of Lawrence Stephens takes a look at the background to the current problems with the insurance market, explaining the main types of insurance in use in the industry and what lenders will demand from borrower developers.

Alternative dispute resolution
How can the solicitor assist in safeguarding expert evidence?
Michael Wright and Millie Leonard of Dentons UK & Middle East LLP analyse a case that highlights the role of solicitors in the proper handling of expert evidence in our latest alternative dispute resolution series article.