Reports from the courts: October 2022

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.

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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.

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Construction Law Guide to: 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.

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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.

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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.

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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.

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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.

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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.

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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.

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Model insurance clause targets softer PII market

Procuring professional indemnity insurance has become one of the most pressing challenges for construction businesses in recent times, following a hardening of the market in the aftermath of the Grenfell Tower fire.

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