Editor’s comment
Report reveals industry unprepared for growing pressures
Editor Nick Barrett finds little evidence in the RIBA Contracts and Law Report that the industry is ready to adopt more collaborative approaches.
News
Our latest news roundup highlights new evidence suggesting construction disputes are on the rise, a call to avoid a return to ‘race to the bottom’ conditions, and a significant injunction ruling to block HS2 protests.
Legal terms explained
Anant Rangan and Xavier Milne of Herbert Smith Freehills LLP explain how adjudication decisions can be enforced.
Guest editor
The green future of construction
Guest Editor Iain Wishart, a highly experienced Quantity Surveyor and Quantum Expert, argues that the growing focus on environmental issues means contract administration on all construction projects is going to become more difficult, time consuming, and expensive. Failure to manage the processes will result in delays and perhaps more disputes, he warns.
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 provides a commentary on professional indemnity insurance challenges and a new model insurance clause designed to cover fire safety risk on projects.
Reports from the courts
Our regular round-up of the court decisions of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP who examine a case that demonstrates the courts’ reluctance to find that liquidated damages provisions are unenforceable for reasons of uncertainty where an alternative interpretation can be found; and a Court of Appeal ruling that provides clarification to beneficiaries of collateral warranties.
Analysis
Ireland’s Construction Contracts Act and its application to projects abroad
Roberta Downey and Ciaran Williams of Vinson & Elkins analyse the Irish Construction Contracts Act, which introduced statutory adjudication to the Republic in 2016. The Act does not expressly limit its application to projects that are executed in Ireland.
CL guides
Damages
In our latest Guides to construction law series Rachel Chaplin of DLA Piper explains the use of damages to compensate parties for breaches of contract or a tort.
ESG
Contracting for ESG
Construction has enthusiastically committed to the government’s net zero ambitions, and pledged to respond positively to other Environmental, Social and Governance demands. Shona Frame and Charlotte Eccles of CMS warn that traditional contractural risk allocation approaches might not be best suited to promoting success in these areas.
Contracts
Drafting for a greener future
Tim Kittow and Harry Coates of Beale & Company Solicitors LLP welcome the benefits that the increasing amount of ‘green drafting’ of construction contracts will deliver, but caution that there are potential risks associated that must be appreciated from the outset.
Adjudication
Meaning of a ‘contract’ defined for adjudication
Barry Hembling of Watson, Farley & Williams LLP reports on an important Court of Appeal decision issued in June 2022, which considered for the first time the statutory meaning of a “construction contract” for adjudication purposes.
Defects
Defects and the courts’ approach to ‘Waking Watch’ schemes
Laura Lintott, Of Counsel at Watson Farley & Williams LLP examines case law on the consequences of defects in projects. The cost of ‘waking watch’ schemes may not be covered under new home warranty insurance in future, she warns.
Insurance
Building defects insurance
Insurance expert John D Wright of JD Risk Associates examines building defects insurance which although not compulsory in the UK, offers peace of mind to policyholders. Recent case law confirms that the courts will take a firm line where defendants seek to avoid liability under guarantee policies intended to provide peace of mind to policyholders.
Alternative dispute resolution
Refusing to mediate – implications for costs in court actions
Sarah Alexander, Counsel at Dentons Middle East and Europe LLP, looks at recent cases shedding light on factors the courts might consider when determining costs where mediation was not attempted.