Editor’s comment
No end in sight to procurement woes
Editor Nick Barrett looks at the latest report slamming public sector procurement incompetence, this time from the government’s own public spending watchdog the National Audit Office. Yet another report is threatened.
News
Our regular news round up focuses on another damning report on public sector procurement failures relating to the UK’s nuclear power station clean up programme; launch of a survey on arbitration; and a government consultation on retentions.
Legal terms explained
Ann Levin and Rebecca Scanlon of Herbert Smith Freehills LLP explain the meaning of predictive coding, a software tool used to prioritise the review of documents for disclosure exercises by likelihood of relevance.
Guest editor
Courts take hard line on fitness for purpose obligations
Guest editor Ben Goffin of DLA Piper LLP says onerous obligations are placed on contractors involved in offshore wind and solar power projects, and warns that they can be easily overlooked within a mass of technical requirement documents. A recent case provides a salutary warning.
Legislation state of play table
Clyde & Co compile our regular update on the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Ana Bonnington and Jamie Calvy comment on safety measures in the wake of the Grenfell Tower tragedy.
Reports from the courts
Our regular round up of court decisions of most interest to construction comes from Andrew Croft and Simii Sivapalan of Beale & Company LLP who focus on the first judgment concerning building information modelling; and an overturning of an adjudicator’s decision that shows the courts are reluctant to hold terms in a contract void for uncertainty.
Contracts monitor
Warning over public liability
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of JCT’s Repair and Maintenance Contract (Commercial) 2016, drawing attention to the changes from the previous edition (RM11).
CL guides
CL Guide to Procurement
Peter Lowe of DLA Piper continues our Construction Law Guides series with a summary of the advantages and disadvantages of the main procurement routes used in the UK.
Legislation
Time to amend the Construction Act
Barrister Marion Rich, Director of Legal and Contractual Affairs at the British Constructional Steelwork Association, says it is time to amend the Construction Act to remove its exclusions. At least one of them is unnecessary and discriminatory, she argues.
Design
Contradictory design duties
The inherent conflict between design standards and performance obligations has been highlighted in a recent Supreme Court judgment. Michael Sergeant of HFW considers the relevance of the long-running Højgaard v E.ON dispute and its relevance in interpreting contracts with conflicting design requirements.
Delay and disruption
Taking the measured mile
Mathias Cheung, barrister at Atkin Chambers, analyses the new edition of the SCL Delay and Disruption Protocol which is gaining wide acceptance. Guidance on concurrent delay might not be consistent with the TCC’s approach, he cautions.
Insurance
The co-insurance conundrum
Marie-Therese Groarke of Withers examines a Supreme Court case that might lead to changes in insurance market practice and construction contracts regarding co-insurance. A key conclusion is that express language in contracts is preferable to being silent on key issues such as liability.
The Insurance Act 2015 – better for policyholders?
Insurance expert John D Wright of JD Risk Associates reviews the impact so far of the 2015 Insurance Act, which has placed new burdens on brokers. The Act will influence specific claim situations in ways that are not yet fully clear, he warns.
Alternative dispute resolution
Getting to know your own contract
In our latest alternative dispute resolution series article Tim Axtmann of Clyde & Co warns adjudicators that their agreements may upset their rights under late payments legislation.