Monthly Archives: January 2015

REUTERS | Lisi Niesner
January 31, 2015

January 2015 digest: looking forward, it’s all about CDM 2015

TS Eliot, Four Quartets:

“Time present and time past, are both perhaps present in time future, and time future contained in time past.”

January’s news is usually dominated by looking forward pieces, setting out what we expect to happen in the year ahead. This year was no exception and here is what we expect to happen in construction in 2015. With a general election on 7 May 2015 and the possibility of a change in government, it is impossible to anticipate what other policy and legislative changes there may be.

The Construction (Design and Management) Regulations 2015 (CDM 2015) were one change that we were sure about: they are one of the key pieces of legislation for this year.

Coming into force in April, the regulations were laid before Parliament this month. Given that CDM is an essential part of the health and safety legislation affecting all construction and engineering projects and property development in Great Britain (and there is no exclusion for small or domestic projects), these new regulations are essential reading for everyone involved in or advising on construction, development or redevelopment work. Continue reading →

REUTERS | Rick Wilking
January 28, 2015

Guilty as charged? Or how to get rights wrong

Should a developer ever be expected to give away its rights as employer under a building contract? You may think the short answer is no, and certainly not when the contractor is about to start work on site or in the middle of the build period. This is precisely when the developer needs to be able to pull the contractual levers and enforce the contract terms.

But surprisingly, some funders and their lawyers don’t see things that way. Instead, they insist that the developer’s rights under the building contract, any consultants’ appointments and any associated novations, collateral warranties or third party rights are absolutely assigned to the funder as a condition precedent to the release of development finance under the loan agreement. All this is, of course, in addition to the myriad of collateral warranties (or third party rights) required to be given directly to the funder.

I’ve struggled to make sense of this. In my mind it’s akin to buying a new car with a bank loan, only for the bank manager to appear at the showroom, congratulate me on my purchase and relieve me of the car keys (for “safe keeping”) along with the steering wheel for good measure. He then insists that I drive him back to his branch. You don’t need a satnav to know that his reasoning has taken a wrong turn.  Continue reading →

REUTERS | Kim Hong-Ji
January 27, 2015

Construction contracts and construction operations looked at again

What have the Romans ever done for us? comes from Monty Python’s Life of Brian and was the inspiration for this post:

“All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, the fresh-water system, and public health, what have the Romans ever done for us?”

As I learnt from reading Akenhead J’s judgment in Savoye v Spicers, the Romans also gave us the words “construction” (the origin being the Latin verb “construere”, which broadly means “putting together”) and “structure” (the origin being the Latin verb “struere”, which apparently means something that has been placed, built, arranged or prepared). Continue reading →

REUTERS | Sean Yong
January 20, 2015

Adjudicator entitled to payment as no breach or lack of jurisdiction

Adjudicators’ decisions are often attacked in enforcement proceedings, with the party resisting enforcement arguing that the adjudicator lacked jurisdiction or breached the rules of natural justice (or both). If those arguments are successful, not only is the adjudicator’s decision unenforceable but, following PC Harrington v Systech, the adjudicator may not be entitled to be paid either. At the time of the Court of Appeal’s judgment, I said that one of the lessons for adjudicators must surely be to take care when dealing with jurisdictional issues. (I also said a fair few other things too!)

It has been a while but, at the end of last term, the issue was before the courts again, this time in Gary Kitt and EC Harris LLP v The Laundry Building Ltd and Etcetera Construction Services Ltd (which, just like PC Harrington v Systech, was also before Akenhead J).   Continue reading →

REUTERS | Jason Lee
January 14, 2015

Liability for variations

This is the first of a series of bi-monthly blog posts on the subject of variations.

This post deals with a subject that should be considered the logical starting point for any discussion about extras: the scope of works. After all, in order to assess whether something is a variation, it is first necessary to determine what the contract requires the contractor to build. Continue reading →

REUTERS | Ina Fassbender
January 6, 2015

My 2015 wish list

It’s that time of year again when we all start looking forward and wondering what the next 12 months will hold.

For the last few years, my looking forward piece seems to have focused on West Ham‘s adventures in the Premier League. At the start of last year, I was pleased to see they had secured the lease of the Olympic stadium and hoped they wouldn’t get relegated. As we start 2015, not only has big Sam managed to keep them in the top flight, but we are pressing for a place in Europe. It remains to be seen whether he can get us there, but at least it means relegation is but a distant thought this season (fingers crossed). Continue reading →

REUTERS | Kai Pfaffenbach
January 5, 2015

Welcome to 2015

TS Eliot, Little Gidding:

“For last year’s words belong to last year’s language
And next year’s words await another voice.
And to make an end is to make a beginning.”

As one year ends, so another year begins. Practical Law has been reflecting on events in 2014 and looking forward to 2015. Continue reading →

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