Construction Law: March 2023

Editor’s comment
Advanced Procurement Agency at heart of call for reform
Calls for an Advanced Procurement Agency are at the heart of a reform agenda being promoted by former Prime Minister Tony Blair and former Conservative Party leader William Hague. Editor Nick Barrett says reform is sorely needed but asks if a new agency can deliver it.

This month’s news round up includes a High Court agreement for an old common law challenge to sewage dumping by water companies to go ahead; an out of court settlement of a PFI hospital dispute; and an Action Plan to speed up infrastructure planning.

Legal terms explained 
David Nitek and Noe Minamikata of Herbert Smith Freehills LLP explain what is meant by the delaying tactic called ‘warehousing’

Guest editor
Dangers of dabbling in Construction Law
Guest Editor Tim Seal, Head of Construction Law at Ridgemont, says highly specialised construction lawyers have an almost uniquely direct connection with the industry they serve, and warns against using non experts for legal advice in what is a very complex area.

Legislation state of play table 
Our regular update of the progress of legislation and government procurement related developments compiled by Construction Law staff; with a Commentary on government support for energy intensive industries.

Reports from the courts
Our Regular round up of the court cases of most interest to construction from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP looks at a decision that confirms that the right to commence adjudication proceedings ‘at any time’ does not conflict with the limitation defence under the Limitation Act 1980; and another that shows the bar is set high for parties intending to challenge an arbitrator’s award if they have to show that it is ‘obviously wrong’.

NEC X29 and the development of climate change clauses
Alice Herbert of HSF looks at the NEC’s secondary option X29 clause, the first UK standard form construction contract clause to address climate change, which she welcomes as a stimulus to good climate change practice.

CL guides
Concurrent delay
Our latest Construction Guides series article comes from Melissa Moriarty of DLA Piper who examines concurrent delay, which differs between Scotland and England.  

Turbo-charging early contractor involvement
Professor David Mosey CBE of the Centre of Construction Law & Dispute Resolution, King’s College London asks why the take up of Early Contractor involvement has been so dilatory. He suggests ways of turbo-charging its take up following the Construction Leadership Council’s report that it would improve efficiency of design and the design process. 

International arbitration
Survey forecasts growth of international arbitration in the energy sector
Vijay Bange and Ed Keating of Duane Morris discusses the findings of an energy disputes focussed survey that found international arbitration to be the preferred method of dispute resolution for international projects. 

Keeping proceedings just and fair
Of Counsel Stephanie Geesink and Emma Thompson and Dominic Turner-Harriss of Watson Farley & Williams LLP examine a recent judgment that supports the argument that once a privileged document is disclosed, any privilege attached is waived. The court was motivated to keep the proceedings just and fair between the parties, they conclude. 

A global renaissance of trust – demonstrating “intelligent trust” to mitigate infrastructure corruption risk
South Africa based anti corruption practitioner Anton Krause of GIACC-SA says that trust is one of the three pillars of capitalism, and is what makes world markets work. Corruption undermines trust and combatting it should be a key part of an overall risk management strategy, he argues. 

Recovery from other sources
Insurance expert John D Wright of JD Risk Associates explains how insurance policies prevent policyholders from being paid more than the sum indemnified by cover from other sources. Insurance law does not permit the insured to benefit from their loss.    

Alternative dispute resolution
Alternative adjudication decisions
Our latest Alternative Dispute Resolution series article from Sarah Alexander of Dentons UK and Middle East LLP examines what happens when a court refuses to enforce an adjudicator’s decision on jurisdictional grounds.