Construction Law: June 2021

Editor’s comment
Toxic and dysfunctional industry awaits its revolution
Editor Nick Barrett says tinkering with payment practices won’t be enough of a solution to the industry’s problems when even the Times in a three day series of articles suggests that the industry is ripe for revolution. It’s long overdue, he says.

This month’s news roundup features a warning that expected price inflation in construction could lead to harder fought claims, details of proposed new powers for the Insolvency Service to help tackle ‘phoenixing’, and the results of a major survey on international arbitration.

Legal terms explained
Michael Sharp and Noe Minamikata of Herbert Smith Freehills LLP explain the Construction Act.

Guest editor
A Smart Risk Register – a tool for non-adversarial behaviour
Guest Editor’s project team consultant Kelachi Amadi-Echendu and barrister Professor Rudi Klein consider how, through creating transparency and behaviour focused on aligned project outcomes, a Smart Risk Register supports the government’s Build Back Better plan.

Legislation state of play table
Dentons UK and Middle East provide our regular update on developments in regulations and legislation as they affect construction. Tracey Summerell comments on mounting pressures on the industry to reduce emissions.

Reports from the courts
Our regular round up of court cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP features one that highlights the need to ensure a project’s supply chain has appropriate insurance; and a judgment that provides comfort to those relying on limits of liability and exclusion clauses that the courts will take a common-sense approach.

Unexploded bombs – who pays?
Jane Hughes and Robert Scudamore of Stevens & Bolton LLP try to fill an information gap on who should be liable for damage caused by unexploded Second World War bombs? Those still buried in the ground are deteriorating all the time.

CL guides
Letters of intent
The latest in our construction guides series from DLA Piper by Jennifer Price-Thomas looks at Letters of Intent, which she warns can carry pitfalls for the unwary.

Design obligations
Warranted trends in design standards
Harith Canna of Herbert Smith Freehills considers significant recent developments concerning design-related obligations, which lie at the core of any construction contract, and their impact on the procurement of construction projects.

Duty of care
Developments in the law of negligence and third-party liability
Claims involving duty of care when damage is caused by a third party are at the fore of developments in the law of negligence, as Barry Hembling of Watson, Farley & Williams LLP reports in this analysis of recent court cases.

Green dispute resolution procedures – what they are and how to use them
In a previous article (Construction Law Vol 32 No 2) Jane Hughes of Stevens & Bolton LLP looked at incorporating green drafting into construction contracts. In this follow up she considers how disputes can be dealt with in a greener, more sustainable way.

Tort of nuisance
The Tort of Nuisance – Overlook It At Your Peril
Chris Bryden and Georgia Whiting of 4 King’s Bench Walk examine the tort of private nuisance, a complex area which they warn has the potential to affect construction professionals in far-reaching (and evolving) ways.

Hard times for professional indemnity
Insurance expert John D Wright of JD Risk Associates examines the current crisis in the professional indemnity market, which he predicted some two years ago. Policyholders can however take steps to help secure cover at an affordable cost.

Alternative dispute resolution
Arbitration exhibiting ‘due process paranoia’
Our regular Alternative Dispute Resolution article comes from Tracey Summerell of Dentons UK and Middle East who asks whether it is time for arbitration to lighten up.