In this month’s issue…
Editor’s comment
Action looms on Protocol
A review of the Pre-Action Protocol looks likely soon. Editor Nick Barrett echoes a TeCSA conclusion that only a light handed approach is needed to revise it.
News
Our news round up focuses on details of proposed JCT suite revisions; TCC rejection of a use of natural justice arguments against an adjudicator’s decision; and a court ruling supporting a ‘common sense’ approach to a claim for additional interim payments.
Legal terms explained
Sam Wigley of Pinsent Masons explains implied terms.
Guest editor
The smash and grab TCC: a case of lost direction?
‘Smash and grab’ adjudications may be undermining the cash flow aims of the Construction Act, but the Court of Appeal may have provided an opportunity for a brave employer to overturn this, says guest editor Richard Booth of Holman Fenwick Willan.
Legislation state of play table
Clyde & Co round up the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Lois Putnam comments on the absence of an approved code of practice accompanying the new CDM Regulations.
Reports from the courts
Our round up of key court decisions from Andrew Croft and Simii Sivapalan of Beale & Company, includes an appeal court decision relating to pay less notices; and a case highlighting that the wording of limitation and exclusion clauses should be considered carefully.
Contracts monitor
Omission not good enough
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of RIBA’s Concise Building Contract. Among the problems found are some opaque sections, potentially problematic omissions, and meetings whose agreements might conflict with contract terms.
The year ahead
Expected legal and litigation trends in 2016
Barrister David Pliener of Hardwicke Chambers looks into his crystal ball and ponders what 2016 might hold for construction law. He asks whether costs will drive litigants away from the courts. Prepare for an imminent battle over the Pre-Action Protocol, he warns.
Arbitration
Arbitration: a new beginning?
The RICS has launched a new service that aims to provide a more cost effective approach to arbitration. Shy Jackson of Pinsent Masons, a member of the working group that devised the new service, explains how it works and the continuing attractions of arbitration, 20 years after the Arbitration Act.
Legislation
Approaching BIM – a legal perspective
Building Information Modelling (BIM) will be compulsory on public sector projects from April, but is the industry ready? Perhaps not fully, but Andrew Croft and Will Buckby of Beale & Company find that the UK is an international leader in BIM take-up in this review of where construction has got to.
Expert witnesses
Experts have lessons to learn
Expert witnesses attracted a fair amount of judicial comment over the past year. Ann Levin and Patrick Stone of Herbert Smith Freehills review the most recent cases providing guidance on a number of aspects of using expert witnesses.
Set-off
Set-off to apply to third parties
Suriya Edwards and Julie Teal of Withers review the state of play with set-off which they argue can be used as a cash flow booster as well as a remedy to contractors. A recent case reviewed extends the application of the set-off rule to apply to third party agreements.
Insurance
The implications of claims made policy wordings
Despite improvements in recent years, claims made policy wordings can conceal pitfalls for the unwary. Insurance expert John D Wright of JD Risk Associates advises on practical steps to minimise the risks.
Alternative dispute resolution
It’s not how you got there; it’s where you end up
In our latest alternative dispute resolution series article Rachel Chaplin of Clyde & Co examines the latest court ruling on an adjudication involving an oral contract.