Contents

Editor’s comment
BIM expertise in short supply?
Does your lawyer actually understand BIM? Editor Nick Barrett comments on a report that suggests not always.

News
Our regular round up of key construction law related news includes government action on payment practices; a £100 million damages award relating to a tunnel collapse; and publication of a second edition of the CIC’s BIM Protocol.

Legal terms explained
Claire Wilmann and Michael Mendelblat of Herbert Smith Freehills LLP explain fitness for purpose.

Guest editor
Decision threatens protection of privilege
Many construction parties involved in disputes instruct expert witnesses via lawyers, partly to attract the protection of privilege to confidential documents. Guest editor Vijay Bange of Trowers & Hamlins argues that a recent decision in a non-construction case might undermine that protection.

Legislation state of play table
Our regular round up of the progress of legislation affecting construction as it passes through the UK and EC legislative systems comes from Clyde & Co. Andrew Primett and Ross Howells comment on the overhaul of the National Planning Policy Framework.

Reports from the courts
In our review of cases of most interest to construction Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP look at a surprise ruling on adjudication; and a rare example of a TCC judgment on a Pre-Construction Services Agreement.

Contracts monitor
Keeping records is good practice
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, warns of changes in the JCT Tendering Practice Note that might easily be overlooked. He also warns about keeping proper records as in many disputes parties are unable to produce the contracts under which they work.

CL guide
CL guide to: professional appointments
Our construction law guides series from DLA Piper continues with an article from Sarah Nunnery-Jones on professional appointments.

Adjudication
Courts giving mixed messages on smash and grab
Have ‘smash and grab’ adjudications been replaced by ‘true’ value adjudications? Elissa Patel and Michael Mendelblat of Herbert Smith Freehills LLP review the situation following a new TCC decision.

Smash and grab here to stay?
Vijay Bange and Oliver Williams of Trowers & Hamlins review the conclusions of their earlier article on smash and grab adjudications in the second of two articles on a key TCC decision in this issue of CL.

Dispute avoidance
Risk management boosts investor confidence
Anton Krause of ResoLex (South Africa) is bringing the RADAR dispute early warning system to the African markets. He explains how these techniques are increasing investor confidence in infrastructure.

Abitration
Construction arbitration a winner under new ICC rules
Raid Abu-Manneh, Rachael O’Grady and Juliana Castillo of Mayer Brown ask whether new ICC arbitration rules that came into force last year have increased speed, efficiency and transparency.

Insurance
Carillion highlights credit insurance
Carillion’s collapse has put the spotlight on credit insurance, which few of its creditors seem to have had. Insurance expert John D Wright of JD Risk Associates explains what cover the market provides.

Alternative dispute resolution
The use of expert determination
In our latest alternative dispute resolution series Lois Putnam of Clyde & Co provides a short guide to the use of expert determination.

Editor’s comment
Zeroing in on zero retentions
Editor Nick Barrett says the chances of ending retentions could be higher than they have ever been, but the price would be a renewed industry focus on performance.

News 
Our news round up this month includes an update on the on-going investigation into Carillion’s collapse; evidence that the construction industry is firmly behind a Bill to reform damaging payment practices; and a landmark prosecution under s 7 of the Bribery Act.

Legal terms explained
David Nitek and Michael Sharp of Herbert Smith Freehills LLP explain the term ‘smash and grab’ adjudication.

Guest editor
Game players need to be match fit
Reform is in the air against a background of government consultations and the Carillion collapse. Guest editor Cecily Davis of Fieldfisher warns that if the industry is to be ‘match fit’ in the post Brexit world the government might take the opportunity to intervene on retentions.

Legislation state of play table
Clyde & Co LLP provide our regular update on the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Anna Bonnington provides a comment on the National Infrastructure Commission’s annual monitoring report.

Reports from the courts
Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP review the most recent cases of interest to construction including one highlighting that rights and remedies in respect of insolvency can apply after termination by a contractor for breach of contract; and another underlining from what point limitation periods start to run from.

Contracts monitor
Sensible suggestions for pre-qualification
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of JCT’s Tendering Practice Note. Some easy measures to help prevent collusion have been overlooked, he says.

CL guide
CL guide to: Striking a balance on liquidated damages
The latest article in our Guides series comes from Jennifer Price of DLA Piper who examines liquidated damages.

Expert witnesses
Expert evidence and construction claims
Digby Hebbard and Thomas Edwards of Fladgate review recent court cases that highlight the consequences of failing to manage expert witnesses adequately. Be careful in selection of experts as well, they warn.

Private finance
Off balance sheet and the Mutual Investment Model
Suriya Edwards of Geldards LLP examines the Welsh government’s Mutual Investment Model for bringing private finance into public sector projects. Sustainability requires a strong focus, she finds.

Contracts
Ingredients for a binding contract
Kwadwo Sarkodie of Mayer Brown analyses the ingredients that must be present for a legal contract to be formed. Even informal chats can turn out to be legally binding he warns.

Cash retentions
Cash retentions post Carillion
Stephen Radcliffe of Walker Morris LLP considers the implications of the Carillion collapse and what it means for the practice of cash retentions. A Private Members’ Bill might provide impetus for long awaited reform of retentions.

Insurance
The supply chain interruption risk
Insurance expert John D Wright of JD Risk Associates explains what the insurance market can provide to protect against the risk of consequential loss and supply chain interruption. Case law proves the wisdom of ensuring cover fully matches requirements.

Alternative dispute resolution
The end of ‘smash and grab’?
In our latest alternative dispute resolution series article Chris Kerr of Clyde & Co LLP asks whether ‘smash and grab’ adjudications have a future following a recent ruling.

Editor’s comment
Stay calm and watch the carry-on
The Crown Commercial Service has announced a £30bn contractors framework and the industry is keen to work under it. But Editor Nick Barrett advises against raising hopes too high, too soon.

News
Our regular news round up includes a think tank warning that UK infrastructure procurement processes are out of date; launch of a new government framework procurement route for contracting services; and a call for whistleblowers to come forward with tip offs about cartels.

Legal terms explained
Samantha Scott of Herbert Smith Freehills LLP explains the meanings of gross negligence and wilful default.

Guest editors
The market will decide on collaboration
Guest editors James Doe and Nicholas Downing of Herbert Smith Freehills LLP compare the approaches to collaboration of new contracts from NEC and FIDIC. Could the FIDIC drafters have been bolder, they ask.

Legislation state of play table
Our regular round up of the progress of legislation affecting construction as it passes through the UK and EC legislative systems comes from Clyde & Co. Iain Bailey provides a commentary on the new FIDIC Red, Yellow and Silver Books.

Reports from the courts
Our review of the most important court cases for construction comes from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP, focussing on a Court of Session ruling highlighting that contractual rights of set-off may be used as a defence in respect of any additional assessment for payment under a payment certificate, even in the absence of pay less notices; and one showing how the drafting of the guarantee as a whole will be key in determining the differences between a guarantee and on demand bond.

Contracts monitor
Carillion puts spotlight on tendering
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his examination of the new JCT Tendering Practice Note. The Carillion collapse will bring the tendering process under fresh scrutiny, he predicts.

CL guide
CL guide to: Design liability
This instalment of the CL guide series by Ross Galbraith of DLA Piper looks at design liability of both contractors and consultants.

Procurement
Light at the end of the highways tunnel?
Highways England has suffered some well-known procurement related growing pains since being formed in 2015. But Will Buckby and Andrew Croft of Beale & Company Solicitors LLP see sound reasons to be cheerful for the future of UK roads procurement.

Modern slavery
Managing modern slavery risks in supply chains
The UK is leading the fight against slavery offences with the Modern Slavery Act 2015, says David Hansom of Clyde & Co, who examines the practical strategies for contractors to consider.

Legislation
Third party rights in Scotland – all change?
A new third party rights Act came into force in Scotland in February. Kirsty Olson of Dentons asks whether it spells the end for collateral warranties, and can third parties adjudicate?

Adjudication
Smash and grab here to stay?
Smash and grab adjudications are here to stay, argue Vijay Bange and Oliver Wiliams of Trowers & Hamlins LLP in this review of case law relating to a legitimate strategy purposely sanctioned by the Construction Act.

Insurance
Third party insurance for contractors
Insurance expert John D Wright of JD Risk Associates explains what cover is available for liability towards third parties which, although not legally demanded, is essential.

Alternative dispute resolution
Short term Brexit boost for arbitration?
Our latest alternative dispute resolution series article comes from Iain Boyle of Clyde & Co who sees a threat from Brexit to the UK’s favoured jurisdiction status for arbitration after a possible short-term spike in demand.

Editor’s comment
Carillion carnage masks PFI malaise

Editor Nick Barrett says the collapse of Carillion may have taken attention away from a highly critical report on the Private Finance Initiative from the National Audit Office that could have even greater long-term implications for construction procurement.

News
Our regular news round up focusses on the launch of updated versions of FIDIC’s ‘Rainbow Suite’ of contracts; an attack on the government’s Construction Supply Chain Payment Charter; and the launch of investigations into the collapse of Carillion.

Legal terms explained
Ibaad Hakim and Michael Mendelblat of Herbert Smith Freehills LLP explain what is meant by knock-for-knock indemnities.

Guest editor
Rise in corruption and bribery prosecutions
Guest editor Laura Lintott of Beale & Company Solicitors LLP discusses the increasing number of prosecutions related to bribery and corruption. The Serious Fraud Office (SFO) is becoming increasingly focussed on such cases, and construction companies should take great care to comply with anti-corruption legislation, she warns.

Legislation state of play table
Our regular round up of the progress of legislation affecting construction as it passes through the UK and EC legislative systems comes from Clyde & Co. Ana Bonnington comments on the Autumn 2017 Budget.

Reports from the courts
In our latest review of the court decisions of most interest to construction Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP look at one that highlights the danger of conflicting and complicated drafting in contracts; and another that confirms the need to serve a pay less notice under the HGCRA applies to final or termination accounts as well as to interim payments.

Contracts monitor
An essential read for tendering
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his review of JCT’s Practice Note on Tendering. A glance at even a summary of its contents might prompt reconsideration of tendering procedures, he says.

CL guides
Guide to Brexit: Article 50 and withdrawal from the EU
Rachel Chaplin of DLA Piper looks at the potential impact of Brexit related changes in the latest in DLA Piper’s series of Construction Guides. Contractors look more at risk from a change in circumstances as a result of Brexit than employers, she warns.

Annual review
Construction Act changes loom in 2018
In this review of the main events of 2017 James Doe and Emma Kurtovich of Herbert Smith Freehills LLP focus on key developments in issues such as extensions of time and concurrent delay. Looking ahead, as well as litigation arising from the Grenfell Tower disaster, they expect a continued emphasis on increasing transparency and news of possible HGCRA 1996 changes.

Review of 2017 in Scotland
Shona Frame and Siân McNiff of CMS review the highlights in Scotland of 2017, an eventful year with developments that will be felt in 2018 and beyond. Key events included legislation that revolutionised third party rights.

Contracts
No absolute rights governing certificates
Jennifer Jones of Atkin Chambers examines the law surrounding conclusive evidence clauses, which often pass unnoticed – until it is too late. Make careful note of any obligatory time periods that might expire, she advises.

Insurance
Latent disease in employers’ liability claims
Insurance expert John D Wright of JD Risk Associates explains how latent disease is treated in employers’ liability policies. The basis on which policies is written is ‘cause arising’ which has created long-standing problems.

Adjudication
Serial adjudications – who bears the cost?
Vijay Bange of Trowers & Hamlins LLP predicts a growing number of challenges to adjudications following recent court decisions, especially where there is evidence of ‘adjudication shopping’ or adjudications being abandoned for no good reason.

Alternative dispute resolution
Adjudication enforcement decisions
In the latest article of our regular alternative dispute resolution series article Richard Kniveton of Clyde & Co examines the implications of two recent adjudication enforcement decisions.

Editor’s comment
More adjudicators needed
The costs of adjudication are under scrutiny in a government consultation, but editor Nick Barrett says rising costs do not justify more use of inexperienced and therefore cheaper adjudicators – yet.

News
Our regular news round up focusses on new research into adjudication fees; new rules for leniency applications from cartels; and a report on the impact of retentions on the industry.

Legal terms explained
Summary judgment is explained by Philip Parrott and Michael Mendelblat of Herbert Smith Freehills LLP.

Guest editor
Remember: always read the contract
Guest editor Michael Sharp of Herbert Smith Freehills LLP says a recent Supreme Court warning to always read the contract should be taken to heart by lawyers as well as signatories to contracts. Parties are free to allocate risk as they see fit, and the courts will uphold such clauses.

Legislation state of play table
Clyde & Co present our regular round up of the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Ian Boyle provides a commentary on the interim National Infrastructure Assessment.

Reports from the courts
Our regular round up of the court cases of most interest to construction comes from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP and focuses on a case highlighting that a high burden of proof of oppressive and unreasonable behaviour will be needed to obtain injunctive relief on those grounds in adjudication.

Contracts monitor
Guidance Notes seldom read
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, concludes his scrutiny of the JCT’s Repair and Maintenance Contract (Commercial) 2016 with a warning that contracts must be read as they change to reflect new legislation and insurance practice.

CL guides
Guide to defects provisions in contracts
Sarah Nunnery-Jones of DLA Piper continues our Construction Law Guides series with a look at defects provisions in the main contract forms.

Contracts
NEC4 increases consultants’ risk
Will Buckby and Andrew Croft of Beale & Company Solicitors LLP examine the new NEC4 Professional Services Contract and find the changes from the previous contract to be more than simply an evolution. Consultants face increased potential risk, they warn.

Private finance
Bringing existing PFI contracts back in-house
Private finance initiative contracts came under threat during the party-political conference season. Davinia Cowden of CMS details the practical problems that would be faced in bringing them back into public ownership.

Exemption clauses
Exemption clauses, risk allocation and ordinary language
Joanne Maclean and Suriya Edwards of Geldards LLP analyse a recent case that underlines the courts’ support for clauses in contracts that are negotiated between parties of equal bargaining power.

Duty of care
The Bolam test and Montgomery in construction
David Pliener of Hardwicke examines a court ruling in a healthcare industry dispute that has potential implications for the duty of care owed by professionals in construction. A construction test case is inevitable soon, he warns.

Insurance
Contractors’ product liability
Insurance expert John D Wright of JD Risk Associates details what is covered under contractors’ product liability policies. Cover for damage to the product itself is usually excluded, but separate cover is available.

Alternative dispute resolution
NEC4 – embracing ADR?
Russell Banfi of Clyde & Co analyses some little reported features of the new NEC4 suite of contracts relating to dispute resolution and avoidance in our latest alternative dispute resolution series. Some new issues are raised, he argues.

Editor’s comment
No end in sight to procurement woes
Editor Nick Barrett looks at the latest report slamming public sector procurement incompetence, this time from the government’s own public spending watchdog the National Audit Office. Yet another report is threatened.

News
Our regular news round up focuses on another damning report on public sector procurement failures relating to the UK’s nuclear power station clean up programme; launch of a survey on arbitration; and a government consultation on retentions.

Legal terms explained
Ann Levin and Rebecca Scanlon of Herbert Smith Freehills LLP explain the meaning of predictive coding, a software tool used to prioritise the review of documents for disclosure exercises by likelihood of relevance.

Guest editor
Courts take hard line on fitness for purpose obligations
Guest editor Ben Goffin of DLA Piper LLP says onerous obligations are placed on contractors involved in offshore wind and solar power projects, and warns that they can be easily overlooked within a mass of technical requirement documents. A recent case provides a salutary warning.

Legislation state of play table
Clyde & Co compile our regular update on the progress of legislation affecting construction as it passes through the UK and EC legislative systems. Ana Bonnington and Jamie Calvy comment on safety measures in the wake of the Grenfell Tower tragedy.

Reports from the courts
Our regular round up of court decisions of most interest to construction comes from Andrew Croft and Simii Sivapalan of Beale & Company LLP who focus on the first judgment concerning building information modelling; and an overturning of an adjudicator’s decision that shows the courts are reluctant to hold terms in a contract void for uncertainty.

Contracts monitor
Warning over public liability
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of JCT’s Repair and Maintenance Contract (Commercial) 2016, drawing attention to the changes from the previous edition (RM11).

CL guides
CL Guide to Procurement
Peter Lowe of DLA Piper continues our Construction Law Guides series with a summary of the advantages and disadvantages of the main procurement routes used in the UK.

Legislation
Time to amend the Construction Act
Barrister Marion Rich, Director of Legal and Contractual Affairs at the British Constructional Steelwork Association, says it is time to amend the Construction Act to remove its exclusions. At least one of them is unnecessary and discriminatory, she argues.

Design
Contradictory design duties
The inherent conflict between design standards and performance obligations has been highlighted in a recent Supreme Court judgment. Michael Sergeant of HFW considers the relevance of the long-running Højgaard v E.ON dispute and its relevance in interpreting contracts with conflicting design requirements.

Delay and disruption
Taking the measured mile
Mathias Cheung, barrister at Atkin Chambers, analyses the new edition of the SCL Delay and Disruption Protocol which is gaining wide acceptance. Guidance on concurrent delay might not be consistent with the TCC’s approach, he cautions.

Insurance
The co-insurance conundrum
Marie-Therese Groarke of Withers examines a Supreme Court case that might lead to changes in insurance market practice and construction contracts regarding co-insurance. A key conclusion is that express language in contracts is preferable to being silent on key issues such as liability.

The Insurance Act 2015 – better for policyholders?
Insurance expert John D Wright of JD Risk Associates reviews the impact so far of the 2015 Insurance Act, which has placed new burdens on brokers. The Act will influence specific claim situations in ways that are not yet fully clear, he warns.

Alternative dispute resolution
Getting to know your own contract
In our latest alternative dispute resolution series article Tim Axtmann of Clyde & Co warns adjudicators that their agreements may upset their rights under late payments legislation.

Editor’s comment
Big battalions battle looming?
A new report says the UK is putting too much into ever larger public procurement packages. Editor Nick Barrett says the report comes out strongly on the side of smaller suppliers.

News
Our news round up this month highlights launch of a new procedure for disputing invoices raised under HSE’s fee for intervention cost recovery scheme; a survey showing the scale of late payment problems in Scotland; and calls for harsher penalties for modern slavery offences.

Legal terms explained
Karan Talwar and Michael Mendelblat of Herbert Smith Freehills LLP explain liquidated damages.

Guest editor
The dearest things in life might be free!
Guest editor Nicholas Maciolek of Atkin Chambers says that a recent court decision that attracted comment on duty of care issues missed the point. The case was more interesting because of what it says about the scope of a professional’s duty in negligence, he argues.

Legislation state of play table
Our regular update on the progress of legislation affecting construction as it passes through the UK and EC legislative systems from Clyde & Co. Lois Putnam and George Bazinas of Clyde & Co comment on the Infrastructure and Projects Authority’s annual report on major projects.

Reports from the courts
In our regular round up of the court decisions of most significance to construction Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP examine a case concerning exemption clauses that went to the appeal court; and another highlighting that contractors need to act quickly to submit extension of time claims.

Contracts monitor
Legislation leads to contract complexity
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of the JCT Repair and Maintenance Contract, focussing on its tendering aspects. Legislative changes mean the contract is more complex than before, with no fewer than 27 terms needing definitions compared to ten previously.

CL guides
CL Guide to: Time in construction contracts
Rachel Chaplin of DLA Piper examines the operation of time in contracts in the latest of our guides to construction law series. Operating the contractual machinery correctly is crucial to the success of time related claims.

Contracts
NEC4 and PPC2000: alliance contract options and legal principles
Professor David Mosey and Jessica Twombley of King’s College London Centre of Construction Law and Dispute Resolution take a critical look at the NEC4 draft project alliance contract. They advise clarification in places to avoid disputes arising from differing interpretations.

Insurance
No cover for actions deemed criminal
Insurance expert John D Wright of JD Risk Associates says liability insurance will be under the spotlight following the Grenfell Tower tragedy. Heavy fines and imprisonments could be handed out by the courts.

Arbitration
Courts prove ready to review arbitral awards
Vijay K Bange and Tanya Chadha of Trowers & Hamlins LLP analyse a case that provides the first example in construction of a successful challenge under the Arbitration Act 1996 on the basis of fraudulent misconduct.

Contract management
Belt and road projects – legal issues when East meets West
Barrister Mathias Cheung of Atkin Chambers outlines the opportunities and potential legal issues presented by China’s massive Belt and Road Initiative. Proper pre-contractual preparations and contract management are essential for success.

Warranties
Collateral warranties: key issues
The key issues surrounding collateral warranties are examined from the viewpoint of their potential beneficiaries, by Shaun Tame, Counsel, Dentons.

Alternative dispute resolution
Mediation – a change in thinking?
In our latest alternative dispute resolution series article Chris Kerr of Clyde & Co reviews a court decision that shows a refusal to engage in mediation will not always trigger cost sanctions.

Editor’s comment
New risk assessment attitude rings changes
Construction has responded positively to calls for a cross-industry response to the Grenfell Tower disaster. Editor Nick Barrett also sees growing support for calls to reintroduce a clerk of works type function as new attitudes to risk management take hold.

News
Our news round up focusses on new guidance from the TCC on public procurement related cases; new consultation on corporate manslaughter sentencing; and the rising level of health and safety fines.

Legal terms explained
Olivia Liang and Michael Mendelblat of Herbert Smith Freehills LLP explain what is meant by estoppel.

Guest editor
Consequential losses and exclusion clauses
Guest editor Jane Fender-Allison of CMS examines a change in the wind around consequential losses and exclusion clauses. She argues that a number of recent cases have opened the door to a more straightforward and commercial approach.

Legislation state of play table
Clyde & Co provide our regular round up of the progress of legislation as it makes its way through the UK and EC legislative systems. Alexander Ghandi and Emily Morris discuss the briefing paper on Planning for Nationally Significant Infrastructure Projects.

Reports from the courts
Our regular round up court cases of most interest to construction from Andrew Croft and Nadir Hasan of Beale & Company LLP includes a decision in which the slip rule proved crucial; and one where the court supported the view that an insured’s policy is not disclosable.

Contracts monitor
New contract gets on the case
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, casts his eye over the JCT Repair and Maintenance Contract (Commercial) 2016. The contract warns that specialist insurance advice should be sought.

CL guides
CL Guide to: Price and payment
Clare Rushton reviews the main ways in which price and payment are dealt with in construction contracts in the latest of our Guides from DLA Piper.

Contracts
NEC4: A collaborative challenge to project management
Former NEC drafting panel adviser Tony Backler and Stephen Woodward of Resolex examine the newly launched NEC4 which aims to help bring construction procurement into the 21st Century. Alliancing and risk management are key themes of the new contract.

Legislation
Health and safety – the need to go above and beyond
High fines and prison sentences for health and safety breaches are becoming more common. Helen Bowdren and Gurbinder Grewal of Dentons consider the new challenges facing construction.

Arbitration
Has the sun set on South Africa’s arbitration ambitions?
Kemi Adekoya and Michael Mendelblat of Herbert Smith Freehills LLP look at the new Arbitration Bill recently introduced to the South African Parliament that will apply to international arbitrations, which should increase its appeal as an arbitration venue.

Payments
Getting your own back
Louis Zvesper of Hardwicke analyses a recent case that highlights the risk of over-payments not being returned to the out of pocket by the courts, and highlights some of the situations in which this can happen.

Insurance
Correct claims are crucial
Insurance expert John D Wright of JD Risk Associates warns that correct procedure must be followed in making claims under insurance policies – but many claimants fail to even notify their insurer that a claim has arisen.

Alternative dispute resolution
Don’t slip on the ‘slip rule’
Our latest alternative dispute resolution series article, from Jamie Calvy of Clyde & Co LLP, urges caution when using the slip rule if an adjudicator’s decision is to be challenged.

Editor’s comment
Time to refocus on quality
Editor Nick Barrett argues for a cross industry approach to analysing what has happened to the construction industry’s approach to quality, called into question by disasters in London and Edinburgh.

News
Our regular news round up focuses on the fallout from the Grenfell Tower disaster; launch of the NEC4 contracts; and more schools defects revealed in Edinburgh.

Legal terms explained
Frustration and force majeure are explained by Emma Kurtovich and Michael Mendelblat of Herbert Smith Freehills.

Guest editor
Judges backing off common sense approach?
Guest editor Vijay Bange of Trowers & Hamlins LLP views the courts’ attitude to interpreting contracts. The commercial common sense versus literal interpretation of words used conflict is unresolved, he says.

Legislation state of play table
Our regular update of the progress of legislation as it passes through the UK and EC legislative systems is provided by Clyde & Co, with a commentary on new payment practices legislation from Richard Kniveton and Ana Bonnington.

Reports from the courts
Our regular review of cases of most importance to construction comes from Andrew Croft and Simii Sivapalan of Beale & Company Solicitors LLP, including one highlighting the potential dangers of giving ad hoc and free advice as a business development initiative; and another showing how a widely drafted limit of liability clause may still be reasonable and therefore enforceable under unfair contract terms legislation.

Contracts monitor
Digitising benefits not fully realised
Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of the JCT Minor Works Building Contract. Some 35 years since JCT Forms were first digitised, full advantage has not yet been taken of the wide range of searches which digitising permits, he says.

CL guides
CL Guide to: adjudication
Michael Tomlinson of DLA Piper presents the latest in our Construction Law guides series, explaining how the adjudication regime works. A useful checklist is provided to help steer through what can be a tricky course.

Legislation
The legal challenges of Brexit for construction projects
Brexit poses particular challenges for those drafting and negotiating contracts for construction projects in the UK, explain Peter Kitson and Mark Fletcher of Russell-Cooke LLP in this overview of the risks.

Adjudication
Adjudicator not bound to accept answers
Stephen Radcliffe of Walker Morris LLP reviews a recent case dealing with jurisdiction and natural justice arguments, in which the court also commented on serial adjudications, severance of decisions, and the use of ‘catch all’ provisions in notices of adjudication and referral notices.

Contracts
PSA 2017: striking the right balance?
Jennifer Badham of Withers LLP looks at the ACE Professional Services Agreement from an employer’s perspective. The new version doesn’t go far enough to strike a balance between the interests of consultants and their clients and funders, she concludes.

Minimum acceptable performance levels
Failing to meet performance related criteria can lead to termination of contracts, so clauses need careful drafting, and reading. Suriya Edwards of Geldards LLP reports on a case that offers a guide to how the courts will interpret contracts containing performance clauses.

Insurance
When is damage not a defect?
Insurance expert John D Wright of JD Risk Associates explains the cover available for defects, which insurance companies as a rule do not feel they should be liable for. Claims can be affected by details of what is insured damage and what is a defect.

Alternative dispute resolution
Injustice not to be simply assumed
In our latest alternative dispute resolution series article Rupert Coldwell of Clyde & Co examines an attempt to remove arbitrators for allegedly failing to properly conduct proceedings.

Editor’s comment    
Construction and lawyers face same wave of change
Collaboration and innovation are regarded as essential for improving construction performance, but they might not be enough. Editor Nick Barrett reports on warnings technological changes will force even more sweeping changes across all industries.

News 
Our news round up this month features a trial for Integrated Project Insurance; a survey showing that fines for health and safety breaches have doubled; and imprisonment for three company directors following the death of a worker.

Legal terms explained
James Doe and Philip Parrott of Herbert Smith Freehills LLP explain what is meant by the term material breach.

Guest editor
FAC-1: £9.5 billion in its first year
Guest editor Professor David Mosey of King’s College London Centre of Construction Law reports on the first year of use of the FAC-1 Framework Alliance Contract. A major success has been its adoption by the Crown Commercial Service on its £2.8 billion national frameworks of project managers and architects.

Legislation state of play table
Our regular update of the progress of legislation as it passes through the UK and EC legislative systems is provided by Clyde & Co, with a commentary on the recent Nuclear Decommissioning Authority case by George Bazinas and Alexander Ghandi.

Reports from the courts
Our regular round up of the court cases of most interest to construction, by Simii Sivapalan and Andrew Croft of Beale & Company Solicitors LLP, looks at a decision shedding light on how the courts interpret the NEC3 ‘mutual trust and cooperation’ obligations; and another highlighting the perils of lengthy and document heavy contracts.

Contracts monitor
Termination a major complexity on minor works
Contracts monitor Michael Phipps, Principal of Thurston Consultants, continues to scrutinise the JCT Minor Works contract, particularly its insurance provisions. Not all defined terms being used are found in the definitions list.

CL guides
CL Guide to: Letters of intent 
Jennie Price of DLA Piper presents the latest of our ‘nuts and bolts’ guides to construction law, explaining how letters of intent work and pitfalls to watch out for.

Contracts
Introducing NEC4 – what changes are proposed?
Anthony Albertini and Emily Morris of Clyde & Co LLP take an early look at the promised changes that NEC4 will contain. Will an over reliance on Z-clauses be ended?

Modern slavery
Transparency and the Modern Slavery Act 2015
Larger companies now need to publish annual statements about their anti-human slavery policies. Suriya Edwards of Geldards explains what has to be done to avoid falling foul of the modern slavery legislation.

Termination
Termination for convenience seldom a two-way street
Marie-Therese Groarke of Withers examines case law relating to ‘termination for convenience’ clauses, which are increasingly being used as nervousness caused by volatility induced by Brexit and falling oil prices grows.

Variations
Valuing variations in the Middle East
Andrew Jones of Dentons warns that contractual rates that overstate the value of contract items can come back to haunt contractors, as some are finding against a background of falling demand in the Middle East.

Insurance
Plant hire imposes onerous conditions
Insurance expert John D Wright of JD Risk Associates warns of the possible insurance problems faced when covering risk of damage and theft to hired plant. More than one policy might have to be in place, he warns.

Alternative dispute resolution
How not to resist enforcement of an adjudicator’s decision
In our latest alternative dispute resolution series article Nathanial Horrocks-Burns of Clyde & Co analyses a TCC case that can be taken as a guide on how not to challenge an adjudicator’s decision.