Construction Law: November 2022

Editor’s comment
Planning reform should be a new Government priority
Editor Nick Barrett says at least one remnant of former Chancellor Kwasi Kwarteng’s legislative proposals deserves to survive, as the UK’s planning regime desperately needs an overhaul.

This month’s news roundup focuses on a pair of High Court rulings in disputes over alleged construction defects on PFI schemes, as well as the latest in a string of legal challenges brought against major road projects on environmental grounds.

Legal terms explained
James Ballheimer and Mathew Shelley of Herbert Smith Freehills LLP explain the Building Safety Act 2022.

Guest editor
When is a frolic of one’s own a breach of natural justice?
Guest editors Chris Bryden and Georgia Whiting of 4 King’s Bench Walk argue that the role of natural justice is critical to the fairness of the legal decision making process, as a recent Scottish case shows.

Legislation state of play table
Our regular update on the progress of legislation and other developments affecting construction is compiled by News Editor Steve Dale, who also comments on the construction industry’s requests for the establishment of a Sustainable Buildings Taskforce.

Reports from the courts
Our regular round up of court decisions of most interest to construction, from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP, includes a rare example of NHBC’s arrangements with its approved contractors being tested in the courts; another case stands as a reminder to ensure that contracts are clear and unambiguous, especially when the works are divided into phases or sections, and when agreeing to design life obligations.

Contractor losses flowing from termination of contracts
Kwadwo Sarkodie and Kiran Giblin of Mayer Brown International LLP examine issues arising from the growing number of disputes relating to termination of contracts. In the event of a contested termination on a key project, being able to formulate robust and well supported claims could prove crucial to a contractor’s survival, they warn.

CL guides
Document management
In our latest Construction Guides series article from DLA Piper Melissa Moriarty examines the importance of effective document management, which can play a key role in preventing disputes from arising.

Adjudication: Can’t pay, won’t pay!
Barrister Karen Gough of 39 Essex Chambers applauds the success of statutory adjudication in the UK in this examination of several strategies defendants can use to resist enforcement of awards. The bar to success is set very high for some of them.

Validly serve notices before appointing an adjudicator
How will the courts approach evidence on whether a notice of adjudication was validly served when the parties’ accounts differ? Stephanie Geesink, Of Counsel at Watson Farley & Williams, reports on a ruling that suggests using email as well as hand delivery when serving documents might be a good idea.

Overcoming the design and construction divide
In the May issue of Construction Law barrister Rudi Klein and risk management consultant Stephen Woodward presented the leadership challenge facing the UK construction industry. Here they consider one aspect of that challenge: overcoming the divide between design and construction which remains a major barrier to effective collaboration.

To appeal or not to appeal, that is the question!
Laura Lintott and Sergio de Aguiar of Watson Farley & Williams LLP ask whether incorporating the ICC Rules into an arbitration agreement leads to waiving the right to appeal for the purposes of section 69 of the Arbitration Act 1996.

Ever widening cyber threat
Insurance expert John D Wright, Principal of JD Risk Associates, examines the insurance market response to the increasing prevalence of cyber crime, which construction companies of all sizes are exposed to. Companies can also inadvertently commit cyber crime themselves, he warns.

Alternative dispute resolution
International arbitration in the modern era
In our latest alternative dispute resolution series article Kirsti Olson of Dentons UK and Middle East reports on a modern approach to arbitration seen in new arbitration rules from Scotland.