Construction Law: June 2023

Editor’s comment
Remediation contract a missed opportunity
The legally binding Developer Remediation Contract being signed up to by developers might be a missed opportunity and could spark years of legal wrangling, warns Editor Nick Barrett.

Our regular news round up reports on another director being disqualified for cartel activity in the demolition sector; prison for a director guilty of health and safety breaches that resulted in a worker’s death; and rejection by the Appeal Court of a challenge to a road construction project.

Legal terms explained
Issues surrounding prolongation costs are explained by David Nitek and Stephanie Lam of Herbert Smith Freehills LLP.

Guest editor
Challenging a Company Voluntary Arrangement
Guest Editors Karen Morean and William O’Brien of Devonshires draw on their own experience of a recent case to show that a Company Voluntary Arrangement can be successfully challenged.

Legislation state of play table
Our regular update of the progress of legislation and government procurement related developments compiled by Construction Law staff.

Reports from the courts
Our regular round up of the court cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine a case highlighting the importance of ensuring that payment provisions are carefully followed; and an Outer House of the Court of Session judgment from Scotland that reinforces the difficulty of challenging an adjudicator’s decision.

Only a matter of time
Theresa Mohammed and Jack Moulder of Watson Farley & Williams LLP examine a Technology and Construction Court decision that settles a longstanding question concerning the applicability of limitation defences to adjudication. A foothold may have been created for parties seeking to raise such a defence, they argue.

CL guides
Practical Completion
Our latest Construction Law Guides series article comes from Tom Manley of DLA Piper who explains what you need to know about how Practical Completion is treated in contracts and by the courts.

Designing and building for Net Zero
Andrew Croft and Tim Kittow of Beale & Co Solicitors LLP report on the growing number of climate change requirements in contracts all along the contractual chain. Companies need to ensure their sustainability credentials stack up if they are to succeed with tenders, they warn.

Dispute resolution
Court provides masterclass in application of contract provisions to provide a fair result
Chris Bryden of 4 King’s Bench Walk and Georgia Whiting of Ardmore Group analyse a Court of Appeal case centring on the whether an “unusual and surprising” dispute resolution clause in a construction contract was enforceable. The court decided that it wasn’t, underlining the importance of careful drafting.

The issue of set-off – no one size fits all
Karen Gough of 39 Essex Chambers examines the use of set-off in an attempt to frustrate the enforcement of an adjudicator’s decision in a recent case. Numerous cases support the view that this tactic will not work, yet the attempts continue.

The extraordinary story behind the TCC
Dr Laura Lintott, Counsel at Watson Farley & Williams LLP, discusses the story behind the Technology and Construction Court, how and why it came about.

Peace of mind can be hard to come by
Insurance expert John D Wright of JD Risk Associates advises that the insured have a responsibility to act as carefully as they would if they had no insurance cover at all. Other responsibilities will mostly be specifically set out in the policy, and strictly complied with.

Alternative dispute resolution
Expert appointments demand expert drafting
Our latest alternative dispute resolution series article from Cheryl Ferguson of Dentons UK and Middle East LLP reports on rare court guidance on the appointment of an expert.