Posts from Bryan Cave Leighton Paisner LLP

Nottingham Forest 1 – 0 Entire Agreement

A recent decision from the Chancery court offers some helpful guidance on the interaction between entire agreement clauses and claims for misrepresentation. Many practitioners may be under the impression that an entire agreement clause has the effect of defeating a claim in misrepresentation. However, this case shows that is not necessarily the case. If parties … Continue reading Nottingham Forest 1 – 0 Entire Agreement

Is it time for Brexit, or just costs?

With the much-anticipated draft withdrawal agreement being revealed last week, I thought it was an opportune time to reflect on the impact of Brexit on the construction industry, and in particular, what effect it is having on parties entering into construction contracts in the current market.

North Midland Building v Cyden: apportioning risk for concurrent delay in the UAE

In North Midland Building Ltd v Cyden Homes, the Court of Appeal held that parties to a construction contract are free to apportion risk in the event of concurrent delay. For more detail on that case, see my colleague, Alexandra Clough’s blog post, Concurrent affairs: North Midland Building Ltd v Cyden Homes. Cyden (as employer) … Continue reading North Midland Building v Cyden: apportioning risk for concurrent delay in the UAE

Practical Law Construction: 10 years a blogging

In the beginning… Happy birthday, Practical Law Construction! A lot has changed in the ten years since the “blog page” came into being. In October 2008 we were living in St Albans, our son was still at school and Labour were in power. Lehman Brothers had recently collapsed and the global financial crisis was in … Continue reading Practical Law Construction: 10 years a blogging

Saved by silence: Letters of intent and Arcadis v Amec

Employers under construction contracts often find themselves under time pressure to get started with construction of their projects prior to concluding negotiations with their preferred contractor and before the building contract is entered into. In such a scenario, employers commonly choose to rely on a letter of intent. This should give the contractor comfort to … Continue reading Saved by silence: Letters of intent and Arcadis v Amec

When design competitions go bad

Some of the world’s most iconic buildings were conceived as a result of architectural competitions. You may be surprised how often such competitions result in controversy. Jorn Utzon submitted his winning concept for the new opera house in Sydney in the mid-1950s. He walked away from the project 11 years later (7 years before its … Continue reading When design competitions go bad

Apocalypse Now? Contractor insolvency: an employer’s survival guide

Last year, a developer client raised concerns about the solvency of its main contractor, Carillion. With over 50% of the works still to be completed, the client wanted some advice as to how it could manage the risks (legally and practically) if the contractor did go “pop”. In January this year, the concerns became a reality. … Continue reading Apocalypse Now? Contractor insolvency: an employer’s survival guide

Risky business: Offshore drilling and using force majeure as an exit route

A contract can be a long term commitment. Over the course of a contract, things happen. Circumstances change. Force majeure clauses generally allow parties to allocate contractual risk, by limiting liability, excusing performance or providing for termination, if unusual or unfortunate circumstances arise. However, the recent case of Seadrill v Tullow reminds us that it is … Continue reading Risky business: Offshore drilling and using force majeure as an exit route

Beware – wildlife on site!

A client recently called me in a panic. Their contractor had discovered a protected species of bird had set up home in the exact spot where they needed to carry out the next phase of works at one of their sites. No one on site was entirely confident on what the appropriate next steps should … Continue reading Beware – wildlife on site!

Can a company in liquidation go to adjudication? Lonsdale v Bresco in the TCC

The TCC does not like blocking ongoing adjudications or interfering in their conduct. To date, it has only done so in a few unusual cases. Recently, however, it has found a good reason to prevent an adjudication from proceeding, which could be of very wide application.

Concurrent affairs: North Midland Building Ltd v Cyden Homes

Concurrent delay is something that the courts tell us is exceedingly rare. And yet, it is a subject which can occupy much time when parties are in dispute about entitlement to an extension of time. The Court of Appeal has now considered whether parties to a construction contract can decide how to apportion risk in … Continue reading Concurrent affairs: North Midland Building Ltd v Cyden Homes

What are you implying? The role of implied terms in contract interpretation

Recent cases, including the Court of Appeal’s judgment in Bou-Simon v BGC Brokers LP and the (as yet unreported) case of Harrow LBC v Engie Regeneration (Apollo) Ltd (2018) (TCC), provide a useful reminder of the strict constraints on implying terms into a commercial contract. Courts can imply terms into a contract in order to … Continue reading What are you implying? The role of implied terms in contract interpretation

Making collateral warranties interesting: the Office Depot case

The trouble with collateral warranties (CWs) is that they aren’t very interesting. Construction lawyers typically overdose on them as trainees and have had enough of them by the time they qualify. A brief foray into the world of third party rights and they are ready to move on to higher things, leaving the following cohort … Continue reading Making collateral warranties interesting: the Office Depot case

The reverse charge: shaking up VAT on construction services

1 October 2019 will see a significant shake-up of the VAT rules in the construction sector. New rules will come into force on that date which will, in many cases, require the recipient of the supply of construction services, rather than the supplier, to account for VAT on the supply. Large and small businesses making … Continue reading The reverse charge: shaking up VAT on construction services

The costly business of ignoring interim assessments and agreed valuations: ICI v Merit Merrell Technology

Valuing a contractor’s work on a complex project is rarely an easy task. During the works, parties to a construction contract commonly devote significant resources to ensuring that the work is properly valued. These valuations are often carried out by people with close knowledge of the project, and under the NEC form of contract certified … Continue reading The costly business of ignoring interim assessments and agreed valuations: ICI v Merit Merrell Technology

Payment, retention and risk: shuffling the deck

Increasingly, the construction industry model that we know so well – based on layers of contractors and sub-contractors – is being called into question. In the last six months various failures (including Grenfell, Scottish PFI-built schools and Carillion’s collapse) have prompted questions about construction industry outsourcing and transfer of risk. Queries have been raised about … Continue reading Payment, retention and risk: shuffling the deck

Prospective analysis of compensation events under NEC: shutting one’s eyes and groping in the dark?

The NEC contract is built on the spirit of mutual trust and co-operation. One area in which this plays out is in the context of applications for an extension of time or a change in the prices by a contractor. The project manager is required to assess these applications on a prospective or forecasted basis, … Continue reading Prospective analysis of compensation events under NEC: shutting one’s eyes and groping in the dark?

The avalanche effect: key issues in modular building

Increasingly, our clients are requesting that we incorporate provisions for modular building techniques into their construction contracts. There seems to be a real trend for including at least some aspects of “modular” into development and other projects. It is open to debate whether this is driven by improvements in design and adaptability of modular building … Continue reading The avalanche effect: key issues in modular building

The fine line between design and implementation: scope of NEC Option X15

Last year, I blogged on the first instance decision of the Scottish courts in SSE Generation Ltd v Hochtief Solutions AG and another. That decision has been overturned by the Inner House, Court of Session (the Scottish equivalent of the Court of Appeal) in an important judgment that sheds light on how the English courts might … Continue reading The fine line between design and implementation: scope of NEC Option X15

Co-insurance and subrogation rights revisited (again!)

My colleague, Natalie Wardle, commented on the Supreme Court’s decision in Gard Marine and Energy Ltd v China National Chartering Company Ltd in her May 2017 blog. As she noted, the judgments (and the 3:2 majority verdict) left a number of questions unanswered. Two of these were: What is the strength of the implied term that … Continue reading Co-insurance and subrogation rights revisited (again!)

An unplanned surprise: Implied planning obligations – Clin v Walter Lilly

Recently, in the course of reviewing a proposed building contract for an employer, I had cause to consider how responsibility for obtaining planning consents had been addressed. Or rather, whether it had been addressed at all. Jean-François Clin v Walter Lilly & Co Ltd is a forceful reminder to effectively deal with this issue. The Court … Continue reading An unplanned surprise: Implied planning obligations – Clin v Walter Lilly

The unchartered Grove: smash and grab practice following Grove v S&T

Coulson J’s decision in Grove Developments Ltd v S&T (UK) Ltd has triggered a great deal of commentary, including Jonathan Cope’s post, which I read with great interest. It got me thinking about what strategies an employer or contractor might adopt to counter a smash and grab adjudication, either pre-emptively or after the referral has landed.