Contents

Editor’s comment
Anti-cartel enforcers warn of focus on public procurement using AI tools 
Editor Nick Barrett reports that the Competition and Markets Authority enforcement head has warned that it is using AI tools to spot evidence of collusive behaviour.

News 
Our news round up of major events affecting construction reports on government threats to seize builder’s land banks if they don’t build-out fast enough; a proposal to licence builders; and a new model proposed for privately funded infrastructure.

Legal terms explained
Himani Patel of Herbert Smith Freehills LLP explains Transferred Loss.

Guest editor
Contracts need more careful preparation to avoid conflicting provisions 
Guest Editor Dom Turner-Harriss of Watson Farley & Williams LLP laments the inadequate contract preparation that is often found to lie at the heart of construction disputes. A recent case highlights what can go wrong, and points towards ways to avoid problems from conflicting contract provisions.

Legislation state of play table
Our regular update on the progress of regulations and legislation affecting construction and procurement compiled by Alignment Media.

Reports from the courts
Our latest round up of the court decisions of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who examine a case that warns parties to monitor digital communications carefully and ensure that contractual negotiations are ‘subject to contract’ so that the signed contractual documents represent the agreed contractual terms; and a judgment that demonstrates the difficulties that parties face in using jurisdictional challenges to resist enforcement of adjudicator decisions.

Analysis
Infrastructure looks like a main beneficiary from change in government investment attitude
Hopes are high that a combination of pension fund reforms and revision to the Treasury’s Green Book could help unleash a new wave of infrastructure investment to be announced in the Spending Review and the Ten-Year Infrastructure Strategy, reports Nick Barrett.

CL guides
Construction Law Guide to: Time in Construction Contacts
The latest in our CL Guides series comes from Rachel Chaplin of DLA Piper LLP who explains some of the key time-related provisions relating to construction works.

Supreme Court
Voluntary Loss and Negligence: URS v BDW in the Supreme Court
Barrister Chris Bryden of 4 King’s Bench Walk looks at the landmark Supreme Court ruling that confirms the general principle that the wrongdoer should pay, regardless of whether money has been paid, or remedial works carried out in kind, without a claim having been intimated. There is no “bright line” rule of law preventing recovery of losses where claims could not be brought due to a time bar.

Arbitration
Modernising and streamlining English-seated arbitration
James Barratt, Bradley Lindsay and Iona Gilby of Vinson & Elkins examine several of the principal changes being introduced by the Arbitration Act 2025 which received Royal Assent in February. Enacting Regulations are likely be made soon, so parties should familiarise themselves with the changes, they advise.

Contracts
Has Design & Build outlived its usefulness in a post-Grenfell world?
Design & Build received implicit criticism in the Grenfell Inquiry report and the number of disputes involving them is on the rise. Barry Hembling, Dan Haley and Sam Gunnewicht of Watson, Farley & Williams LLP argue that this popular procurement route might no longer be fit for purpose.

Warranties
Does the Building Safety Act 2022 remove the value of building warranties?
Pauline Lam, Mark Fletcher and Aaron Walder of Russell-Cooke LLP ask whether the Building Safety Act is in need of reform following a First-tier Tribunal decision that could give insurers opportunities to avoid liability for remediation works under new build warranties.

Insurance
The Insurance Market – Meeting Today’s Challenges
Insurance expert John D Wright of JD Risk Associates predicts major challenges ahead for the stability business needs from the insurance market. Technological change, cyber crime and climate change are among the risks that need to be managed more rigorously than ever.

Alternative dispute resolution
No time for complacency in tech adoption
The latest in our alternative dispute resolution series comes from Tracey Summerell of Dentons UK and Middle East LLP who warns against complacency in face of the increasing use of new technologies like AI. The same standard of professionalism has to be applied to their implementation as in lawyer’s expert fields, she says.

Editor’s comment
Government slated for failures to advance post Grenfell remediation plans 
Editor Nick Barrett looks at the Pubic Accounts Committee’s report on the government’s dilatory progress on post Grenfell Tower tragedy building safety. Complacency and not taking issues seriously enough are among the accusations levied by MPs.

News
Our regular news round up includes publication of the Planning and Infrastructure Bill; housebuilders demanding that product manufacturers make a bigger contribution to the Building Safety Levy; and Scottish government support for the fast developing offshore wind market.

Legal terms explained
Tse Wei Lim and Yun Wen Soh of Herbert Smith Freehills LLP explain what decennial liability means.

Guest editor
It’s tough to make predictions, especially about the future – emerging risks in construction
Guest Editor Jane Hughes of Trowers & Hamlins LLP looks back at some predictions she made in Construction Law 20 years ago, and makes some new ones. One area that she made a prediction about tragically proved to be prescient, although not in quite the way expected.

Legislation state of play table
Our regular update on the progress of regulations and legislation affecting construction and procurement compiled by Alignment Media.

Reports from the courts
Our regular round up of the court cases of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who look at a decision underlining the importance of clear and unambiguous drafting of variation clauses; and one that highlights the difficulties that insurers will face where their policyholders become insolvent.

CL guides
Construction Law Guide to: NEC4 (Part 2)
This second article on the NEC4 Engineering and Construction Contract (“ECC”), from Joanne Bennett of DLA Piper UK LLP, focusses on key aspects of core clauses 6 to 9, together with the dispute resolution options, secondary option clauses and Contract Data.

Planning
New kid or old hand – planning for data centres in the UK
The UK Government has committed to expanding the UK’s computer capacity by at least 20 times by 2030 as part of the AI Opportunities Action Plan. Sarah Fitzpatrick of Norton Rose Fulbright explains changes being made to the planning regime that will support the necessary growth in data centres.

Sustainability
Incorporating green drafting into construction contracts
Elle Cheung and Jane Hughes of Trowers & Hamlins LLP examine some sources of green drafting that provide provisions that can be incorporated into contracts. A fresh approach to drafting and risk allocation will be needed, they argue.

Building Safety Act
Information orders and liability: further developments
Chris Bryden and William Innes of 4 King’s Bench Walk analyse a case providing guidance on the conditions to be met before an Information Order will be made under the Building Safety Act. Only claims against bodies subject to a ‘relevant liability’ will succeed, the TCC has ruled.

Key building safety cases in 2025
In this review of recent key cases Richard Flenley and Mike O’Connor of Speechlys look at the impact of the Building Safety Act 2022, the biggest upheaval in construction regulation since the introduction of statutory adjudication in 1998.

Insurance
Good faith in insurance contracts
Insurance expert John D Wright explains how the obligation to act in good faith works in insurance law. Acting in good faith is a relatively recent duty in construction contracts, but it has been fundamental to insurance contracts for over 300 years.

Alternative dispute resolution
Lest we forget the value of our role in upholding the rule of law
Our latest alternative dispute resolution series article comes from Tracey Summerell of Dentons UK and Middle East LLP who looks at some recent events that show our much admired legal system at work.

Editor’s comment
New Act no cure for procurement malaise
Editor Nick Barrett asks whether the long awaited Procurement Act which came into force in February is likely to result in the improvement that the UK’s public sector procurement needs.

News
Our regular news round up looks at a report predicting a rise in cladding related professional indemnity policy claims; a rise in PFI handback condition disputes; and major Heathrow Airport investment plans.

Legal terms explained
Nick Oury and Maddy Van Every of Herbert Smith Freehills LLP explain IBA’s new Site Visit Model Protocol

Guest editor
Nerves of steel with millions at stake
For steel importers facing retrospective duty claims in excess of £25 million due to purported, post-Brexit administrative errors, the battle against HMRC is just beginning. Thea Maertens, a legal director at Gateley Legal, explores other legal routes that could help to mitigate big bills from HMRC.

Legislation state of play table
Our regular update on the progress of regulations and legislation affecting construction and procurement compiled by Alignment Media.

Reports from the courts
Our regular round up of the court decisions of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP. The first case they look at represents the first time that the High Court has found a “relevant liability” regarding an application for a Building Liability Order; and the second highlights that leaseholders should not bear the financial burden of fire safety remedial work, and that developers and their associated companies are the key targets for the costs of remediating fire safety defects.

Analysis
Generative Artificial Intelligence to transform construction procurement
Construction’s long and complex supply chains increasingly come under pressure, partly due to geopolitical events beyond the industry’s control, but partly also for reasons that it can often do something about. Kelly Boorman of RSM UK examines how construction can use technology and data analysis to mitigate at least some of the resulting risks around contract performance and safety.

CL guides
Construction Law Guide to: NEC4 (Part 1)
Our latest Construction Law Guides series article comes from Corinne McCarthy of DLA Piper UK LLP who, in the first part of a two-part article, looks at the NEC Engineering and Construction Contract, of which there are six forms.

Building safety
Understanding the Building Safety Act: what real estate legislation can tell us
Barry Hembling and Dev Desai of Watson Farley & Williams LLP examine some measures introduced by the Building Safety Act 2022 that they say purposely introduce an interplay between construction law and property law. Resulting uncertainty leaves room for divergence in how courts interpret statutory language under the traditionally different legal regimes, they warn.

Mediation
Compulsory mediation before trial: cracking even the hardest nuts
Jon Shaw of 3PB asks whether making the previously voluntary process of mediation compulsory will lead to the resolution of more disputes before trial. He examines a case thought to be the first time the High Court has made such a compulsory mediation order.

Planning
Development consent process to be more efficient and faster
Ben Garbett of Keystone Law says ambitious government plans to promote investment are welcome but face some deeply embedded structural problems in the planning system that have to be solved urgently. Sweeping reforms expected in the Infrastructure & Planning Bill due in March are keenly awaited.

Contracts
Surviving termination: the enduring rights and obligations in construction contracts.
Joseph Wittenberg of Turner & Townsend Contract Services Ltd looks at uncertainty around what rights and obligations survive contract termination. The courts will assume that a party will not freely give away its common law rights, so careful clause wording could be important, he warns.

Insurance
Insuring the catastrophe risks
Insurance expert John D Wright of JD Risk Associates looks at the insurance cover available for losses incurred during catastrophes, which are on the rise due to climate change. Some risks are already uninsurable, he warns.

Alternative dispute resolution
Could ADR help shift to collaborative contracting?
Practical steps for meeting the JCT’s collaboration requirement were discussed in our June 2024 column. In our latest alternative dispute resolution (ADR) series article, Tracey Summerell considers whether the availability of a mediation-like process for key parties pre-project commencement could fast-track the establishment of trust and strong relationships that underpin collaboration.

Editor’s comment
Infrastructure strategy says all the right things, but…
Government has started discussions on a proposed Infrastructure Strategy, that says most of the right things. But Editor Nick Barrett advises holding fire on judgement for now.

News 
Our regular news round up focusses on a new planning reform working paper; delays on an investment decision for Sizewell C; and accusations that clients are failing to engage with the post-Grenfell building safety regime.

Legal terms explained
Jason Han of Herbert Smith Freehills LLP explains what is meant by Pure Economic Loss.

Guest editor
Navigating the challenges and contractual landscape in the offshore wind industry
Guest Editor James Cameron of Pinsent Masons welcomes a new FIDIC contract that is expected this year, which will address some of the issues facing the offshore wind industry. The sector is also one that should benefit from current government promises to limit the use of judicial reviews that can substantially delay project progress.

Legislation state of play table
Our regular update on the progress of regulations and legislation affecting construction and procurement compiled by Alignment Media.

Reports from the courts
Our regular round up of the court decisions of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who examine one that may result in an increase in fire safety disputes being referred to adjudication; and an appeal court judgment that clarifies the meaning and application of wording which is often used in construction all risks policies.

Analysis
The construction adjudicator of the future  
Mike Waring, construction specialist and partner at Knights, explores the concept of the AI Adjudicator-bot and delves into how AI can enhance case management, with a particular focus on its application in adjudication.

CL guides
Construction Law Guide to JCT Contracts
Our latest Construction Law Guides series article comes from Rachel Chaplin of DLA Piper UK LLP who looks at the Joint Contracts Tribunal range of contracts.

Review of 2024
Review of construction law in 2024
Our review of the construction law year comes from Andrew Croft, Ben Spannuth, Daniela Miklova, Kayleigh Rhodes, and Anna Benz of Beale & Company Solicitors LLP. The courts saw a lot of activity and there were significant developments relating to building safety.

Scottish construction law review of 2024
Shona Frame and Heather Gibson of CMS review the most significant construction law related developments in Scotland in 2024, of which there were more than a few. A raft of new legislation, significant court decisions and regulatory changes kept lawyers on their toes.

Adjudication
‘Rational businesspeople’ always trust in Fiona
Jane Hughes and Greg Barton of Trowers & Hamlins LLP analyse a TTC decision handed down late in 2024 holding that claims under the Defective Premises Act can be adjudicated. It suggests that parties should ensure they retain records for up to 30 years after practical completion.

Remediation
Remediation Acceleration Plan: mid-rise buildings, high-stakes reform
Dev Desai and Rupi Chandla of Watson Farley & Williams LLP explain what is required under the government’s Remediation Acceleration Plan (RAP) for mid-rise buildings. The RAP risks a plethora of regulations, proposals and guidance which risks muddying the waters further, they warn.

Insurance
Insuring Collateral Warranties
In this examination of collateral warranty related insurance our insurance expert John D Wright of JD Risk Associates explains issues arising from the extended limitation periods applicable under the Building Safety Act.

Alternative dispute resolution
Dispute Review Boards updates
Our latest Alternative Dispute Resolution series article comes from Sarah Alexander of Dentons UK and Middle East LLP who reports on some interesting updates relating to the appointment and use of dispute review boards.

Editor’s comment
Judge advises parties to consider regional courts
Pressure on the TCC could be relieved if parties stayed out of town, Editor Nick Barrett finds a senior judge has advised.

News
Our regular news round up reports on a major review of water industry regulation; a rail group urging the use of private finance; and a call for standard form contracts to be left unamended.

Legal terms explained
Tom Cadman of Herbert Smith Freehills LLP explains what is meant by Building Liability Orders.

Guest editor
Emergency Arbitration: How can this international concept be applied to UK construction?
Guest Editor Mike Waring of Knights suggests proposed new emergency arbitration procedures could help the UK maintain its reputation as a leading arbitration jurisdiction. Although such procedures are regarded as crucial internationally, they are not covered by the Arbitration Act 1996.

Legislation state of play table
Our regular update on the progress of regulations and legislation affecting construction and procurement compiled by Alignment Media.

Reports from the courts
Our regular round up of the court decisions of most interest to construction comes from Andrew Croft, Ben Spannuth and Daniela Miklova of Beale & Company Solicitors LLP who examine a judgment supporting the Scottish law position that an adjudicator’s decision as to liability for their fees cannot be challenged, even if the adjudicator’s decision is later reversed; and another that serves as a reminder that parties are under a duty to mitigate their losses, so only reasonable costs should be incurred owing to another party’s alleged breach, and parties must be able to evidence that such costs have been reasonably incurred.

Analysis
Reports highlight causes of disputes and cost failures on major infrastructure projects
Our latest Analysis series article looks at two recent reports that highlight causes of disputes and management failures on projects. Causes are reasonably easy to pinpoint; solutions remain elusive.

CL guides
EPC Contracts
The latest in our CL Guides series comes from Joanne Bennett and Daniel Warren of DLA Piper UK LLP who look at what EPC contracts involve.

Contracts
JCT Design and Build 24: Ground condition risk allocation
Michael Allan of Pinsent Masons LLP examines the JCT Design and Build contract treatment of ground conditions risk. Additional provisions and reliefs have been introduced in the 2024 revision to deal with asbestos, contamination and unexploded ordnance.

Insolvency
Fail to prepare, prepare to fail – contractual options for mitigating the risk of contractor insolvency
Andrea Leigh of Trowers & Hamlins LLP looks at what can be done to protect against the worst impacts of contractor insolvency. Project Bank Accounts and alliancing contracts are key measures that offer protection to the supply chain.

Adjudication
Adjudication and collateral warranties
Doug Wass of Macfarlanes looks at the recent Supreme Court decision on whether collateral warranties are to be seen as construction contracts under the Construction Act. The decision brings certainty to what was a confused picture.

Collateral warranties
Adjudication enforcement: let’s set-off again!
Karen Gough of 39 Essex Chambers warns that set-off is very unlikely to succeed as a defence to adjudication enforcement proceedings. Recent court decisions show that applications that undermine the prompt payment obligation in the Construction Act may be technically permissible, but will not succeed.

Insurance
The claims process
Insurance expert John D Wright explains the process of making a claim under an insurance policy – a potential minefield for the unwary he warns, as there are many reasons why a claim may not be paid in full, or at all.

Alternative dispute resolution
Renewable energy disputes – new energy, old disputes
Akil Jackson of Dentons UK and Middle East LLP considers alternative dispute resolution (ADR) in the context of renewable energy contracts, asking what approach is being taken and whether there a preference for a particular type of ADR.