The well-worn phrase that inevitably surfaces whenever a major infrastructure initiative or public project goes off the rails is the familiar promise that “lessons have been learned.” Experience, of course, teaches us that little to nothing is ever truly absorbed, and the same institutional missteps are repeated with disheartening regularity.
That pragmatic weariness is worth keeping in mind as we look across the contents of this issue of Construction Law. From our opening news roundup and regular trackers like the Legislation State of Play and Reports from the Courts, down to our core expert features, the industry continually finds itself grappling with perennial risks under new guises.
Our Guest Editor, Shona Frame of CMS, opens this issue by asking whether the contract model itself can influence the likelihood of disputes in her piece, “Can the contract model influence the likelihood of disputes?”. As Shona points out, while standard form contracts provide a wealth of tools for early warnings and notice requirements, they all too often become blunt instruments or get weaponised when projects face unachievable pricing, unrealistic programmes, or under-developed designs. When external shocks or poor pre-contract conditions strike, no amount of standard drafting can substitute for commercial alignment and sensible behavior.
That theme of commercial and legal risk management flows directly into our analytical pieces. In the wake of recent safety developments, Georgia Whiting’s examination of Criminal Convictions and Building Safety Claims: The Civil Consequences highlights the complex fallout when criminal culpability intersects with civil liabilities, such as under section 149 of the Building Safety Act 2022 and Building Liability Orders. This is complemented by our practical Construction Law Guide to Key Ancillary Agreements by Sara Sacramento, which breaks down the mechanics of deeds of novation, collateral warranties, performance bonds, and parent company guarantees as essential safeguards against downstream disputes.
Nowhere is the demand for sharper risk management more apparent than in the technical and technological frontiers. In Gareth Morris-Hale’s piece, The Challenge of AI-Assisted Expert Evidence, we examine the line between permissible administrative or analytical support and the dangerous delegation of independent expert reasoning, urging clear functional boundaries and validation through AI methodology statements. Similarly, as developers race to bridge the capacity gap in The Need for Speed: Managing Risk in Fast-Track Data Centre Construction Projects, parallel design and execution can easily trigger cascading delays and change-order bottlenecks unless managed with precise contractual drafting and rigorous recordkeeping.
Moving into dispute resolution and liability, Vijay K Bange and Harry Clark examine the vital enforcement and interim role played by domestic courts in Got Your Back – The Role of Domestic Courts in Arbitration, alongside Antony Smith, Andrew Croft, and Joseph Roberts assessing PFI Disputes and the Case for Reforming Dispute Resolution ahead of the approaching 2030 wave of expiries. On the liability front, John Wright unpicks the evolving doctrine of vicarious liability in Employer’s Liability insurance, tracing how recent Supreme Court decisions continue to test the boundaries of the “master and servant” relationship and the elusive definition of acts committed “in the course of employment”. For a grounding in non-contractual remedies, Harsh Jain’s legal term breakdown on Unjust Enrichment offers a clear reminder of how courts approach restitution when contracts fail to govern the field.
Finally, looking at alternative avenues for dispute settlement, Michael Wright and Akin Akinbode examine whether AI-enhanced tools can streamline document-heavy evidence processing to make Early Neutral Evaluation (ENE) a more viable and cost-effective route before litigation or formal proceedings take over.
Kirsty Barrett