Posts from Practical Law

May 2017 digest: adjudication and eclectic comment

Shakepeare, Sonnets: “Shall I compare thee to a summer’s day? Thou art more lovely and more temperate: rough winds do shake the darling buds of May.” It isn’t often that we resort to Shakespeare on this blog and, given the wind and rain of early May, something from the Tempest may have been more apt. … Continue reading May 2017 digest: adjudication and eclectic comment

Feeling the buzz of battery storage

As an energy lawyer, I’ve been used to an electricity system premised on “you can’t store electricity”. The physical infrastructure, as well as the contractual and regulatory framework, is based around the real-time balancing of supply and demand. It consequently features degrees of complexity (and commercial opportunity) not seen in the downstream gas sector. But … Continue reading Feeling the buzz of battery storage

April 2017 digest: adjudication and NEC4

Just when you thought there could be no more surprises as Brexit unfolds, Theresa May popped out of No 10 to announce that there will be a general election on 8 June to bring “strong leadership” to the country. She explained that: “At this moment of enormous national significance there should be unity here in … Continue reading April 2017 digest: adjudication and NEC4

What to expect from NEC4

The NEC4 suite of contracts is being published in June 2017 and is already available to pre-order. That doesn’t leave much time for practitioners to prepare, so what do we know about this new raft of contracts? 

January to March 2017 case review for construction practitioners

Algernon Charles Swinburne, Atalanta in Calydon: “And frosts are slain and flowers begotten, and in green underwood and cover, blossom by blossom the spring begins.” In keeping with the time of year, we decided to spring clean and have changed the format of our quarterly review. What follows are some of the more interesting decisions affecting … Continue reading January to March 2017 case review for construction practitioners

“It’s simply a question of being on top of the admin”

At least that was the view of Fraser J in his concluding remarks at Adrian Williamson QC‘s SCL talk earlier this week (and, yes, I did warn Peter that I was going to quote him). Adrian was discussing payment under the Construction Act 1996 and was highlighting where we currently are, when it comes to … Continue reading “It’s simply a question of being on top of the admin”

February 2017 digest: rainy days and Donald Trump

Mitch Hedburg: “My fake plants died because I did not pretend to water them.” February has been a grey, wet month this year, with few high points, although we are sure that everyone is intrigued by the stories coming from across the Atlantic. Donald Trump may have only been the 45th President of the United … Continue reading February 2017 digest: rainy days and Donald Trump

January 2017 digest: Brexit, of course (and payment)

The Clash famously sang, “Should I stay or should I go now?”. In light of the Supreme Court’s Article 50 judgment and the subsequent news coverage, one might wonder if that applies to Brexit and should be “Will we stay or will we leave now?”. As the saying goes, only time will tell and, in … Continue reading January 2017 digest: Brexit, of course (and payment)

Experts in construction disputes: room for improvement?

One of the perennial issues in construction disputes, which often features on this blog, is how effective expert evidence is and the challenges for experts, lawyers and the courts when obtaining and using expert evidence. Those of you with long memories will recall that this is something the Society of Construction Law (SCL) has been considering … Continue reading Experts in construction disputes: room for improvement?

Welcome to 2017

Arnold Bennett: “The chief beauty about time is that you cannot waste it in advance. The next year, the next day, the next hour are lying ready for you, as perfect, as unspoiled, as if you had never wasted or misapplied a single moment in all your life. You can turn over a new leaf every hour if you choose.” As … Continue reading Welcome to 2017

December 2016 digest: e-filing and Canary Wharf

Shakespeare, Sonnets: “How like a winter hath my absence been from thee, the pleasure of the fleeting year! What freezings have I felt, what dark days seen! What old December’s bareness every where!” December is often a quiet month in current awareness terms, and this month was no exception. The government’s appeal to the Supreme Court … Continue reading December 2016 digest: e-filing and Canary Wharf

October to December 2016 case review for construction practitioners

Oscar Wilde, The Ballad of Reading Gaol: “I know not whether Laws be right, or whether Laws be wrong; All that we know who lie in gaol is that the wall is strong;” We have seen a number of interesting decisions affecting construction and engineering practitioners during the fourth quarter of 2016.

Christmas quiz 2016

Our festive quiz is back again, so take some time off from that ambush adjudication and have some fun. 

FIDIC Rainbow Suite: what do the new editions hold in store?

There was a full house at the FIDIC International Contract Users’ Conference 2016 which took place in London on 6 and 7 December 2016. The FIDIC conferences always attract a large international audience. However, this year there was an additional draw; a special pre-release version of the second edition of the FIDIC Yellow Book was unveiled. 

Email arrangements over Christmas and the new year

Following business as usual this week, Practical Law Construction will send its last email of 2016 next week, to arrive in your inbox on Thursday 22 December 2016. We are then taking a break until the new year. The first email of 2017 will be sent to arrive in your inbox on Thursday 5 January 2017. … Continue reading Email arrangements over Christmas and the new year

November 2016 digest: Ch-ch-changes

David Bowie, Changes: “I watch the ripples change their size But never leave the stream Of warm impermanence and So the days float through my eyes” The government’s appeal to the Supreme Court on Article 50 will not be heard until next month (and the outcome may not be known until early next year), and … Continue reading November 2016 digest: Ch-ch-changes

October 2016 digest: anniversaries and amendments

Francis Bacon, Advancement of Learning: “The knowledge of man is as the waters, some descending from above, and some springing from beneath, the one informed by the light of nature, the other inspired by divine revelation.” Practical Law Construction celebrated its eighth birthday this month. A lot of water has gone under the bridge since we … Continue reading October 2016 digest: anniversaries and amendments

It was all about construction, construction law that is

Last week, I attended Sweet and Maxwell’s tenth annual construction law conference. As the marketing material says, it was a full day that aimed to: “…give construction lawyers a better understanding of how to overcome real-world challenges by providing context and insight from in-house speakers working on current major projects.”

July to September 2016 case review for construction practitioners

Charles Bukowski, Notes of a Dirty Old Man: “Courts are places where the ending is written first and all that precedes is simply vaudeville.” We have seen a number of interesting decisions affecting construction and engineering practitioners during the third quarter of 2016.

September 2016 digest: JCT and adjudication

EB White, Charlotte’s Web: “The crickets sang in the grasses. They sang the song of summer’s ending, a sad monotonous song. ‘Summer is over and gone, over and gone, over and gone. Summer is dying, dying.’ A little maple tree heard the cricket song and turned bright red with anxiety.” As in 2012, summer has ended … Continue reading September 2016 digest: JCT and adjudication

August 2016 digest: Olympic success

Pierre de Coubertin, founder of the International Olympic Committee: “The important thing in the Olympic Games is not to win, but to take part; the important thing in Life is not triumph, but the struggle; the essential thing is not to have conquered but to have fought well.” With test cricket and Rio 2016 both finishing this month … Continue reading August 2016 digest: Olympic success

July 2016 digest: sporting moments and judgments abound

JRR Tolkien, The Fellowship of the Ring: “‘So my plan is spoilt!’ said Frodo. ‘It is no good trying to escape you. But I’m glad, Sam. I cannot tell you how glad. Come along! It is plain that we were meant to go together. We will go, and may the others find a safe road! … Continue reading July 2016 digest: sporting moments and judgments abound

April to June 2016 case review for construction practitioners

Edmund Burke, Speech on conciliation with America: “I am not determining a point of law; I am restoring tranquility.” During the second quarter of 2016 we have seen a number of interesting decisions affecting construction and engineering practitioners.

June 2016 digest: Brexit

Charles de Gaulle, who vetoed British accession to the European Economic Community (EEC) for years, speaking in 1967: “There is the Common Market, and for us, there is no problem. For you, there is one: you want to get in, and that is your problem.” Almost fifty years on, how times have changed. There was … Continue reading June 2016 digest: Brexit

What has changed in JCT Minor Works 2016?

The JCT launched its 2016 edition of the Minor Works suite of contracts on 15 June 2016. This will be followed by the other JCT contract suites, which will be rolled out family by family. We understand that the next contracts to be published will be the short form of sub-contract and sub-subcontract (date to be confirmed), … Continue reading What has changed in JCT Minor Works 2016?

May 2016 digest: Queen’s Speech and elections

English proverb: “Ne’er cast a clout till May be out.” This phrase has been in use since at least the 18th century and is generally taken to mean that you shouldn’t be too keen to leave your winter clothes behind. There is a debate about whether the May reference is to the month or blossom … Continue reading May 2016 digest: Queen’s Speech and elections

April 2016 digest: ch-ch-ch-ch-changes

Alfred, Lord Tennyson, Locksley Hall: “Forward, forward let us range, let the great world spin for ever down the ringing grooves of change.” This month saw a number of legislative changes that will impact on construction practitioners, including significant changes to costs management, new public procurement regulations (which Stella Mitchell and Kate Wall discussed) and amendments to the Construction Industry Scheme … Continue reading April 2016 digest: ch-ch-ch-ch-changes

January to March 2016 case review for construction practitioners

Charles Dickens, Oliver Twist: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass – a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience … Continue reading January to March 2016 case review for construction practitioners

March 2016 digest: budget, payment and procurement

Lewis Carroll, Alice in Wonderland: “‘Take some more tea’, the March Hare said to Alice, very earnestly. ‘I’ve had nothing yet’, Alice replied in an offended tone, ‘so I can’t take more’. ‘You mean you can’t take less’, said the Hatter: ‘it’s very easy to take more than nothing’. ‘Nobody asked your opinion’, said Alice.” Some … Continue reading March 2016 digest: budget, payment and procurement

Transparency is key to avoiding bias allegations

It is not unusual in construction disputes for parties to go back to the same advisors time and again. Everyone has their “favourites”, their preferred experts, mediators, adjudicators and arbitrators, who will be appointed as required. Therefore, Hamblen J’s judgment in Cofely Ltd v Anthony Bingham and another acts as a reminder to all those involved in … Continue reading Transparency is key to avoiding bias allegations

When is an inadequate mechanism an adequate mechanism under the Construction Act 1996?

According to Edwards-Stuart J in the TCC, it may be when there is an implied term. In what might have been an unremarkable situation, Edwards-Stuart J has given what some would describe as a remarkable judgment. I refer to Manor Asset Ltd v Demolition Services Ltd, as discussed by John Hughes-D’Aeth last week.

February 2016 digest: payment, adjudication and Brexit

The Old Farmer’s Almanac: “Groundhog found fog. New snows and blue toes. Fine and dandy for Valentine candy. Snow spittin’; if you’re not mitten-smitten, you’ll be frostbitten! By jing-y feels spring-y.” Although February is the shortest month, it often feels like one of the longest with its seemingly endless cold, grey days. Spring will (hopefully) … Continue reading February 2016 digest: payment, adjudication and Brexit

January 2016 digest: frosty mornings and new beginnings

Thomas Hardy, The Darkling Thrush: “I leant upon a coppice gate When Frost was spectre-grey, And Winter’s dregs made desolate The weakening eye of day. The tangled bine-stems scored the sky Like strings of broken lyres, And all mankind that haunted nigh Had sought their household fires.”

Welcome to 2016

Lewis Carroll, Alice’s Adventures in Wonderland: “‘Where shall I begin, please your Majesty?’ he asked. ‘Begin at the beginning’, the King said, gravely, ‘and on till you come to the end: then stop.’” As one year ends, so another year begins. Practical Law has been reflecting on events in 2015 and looking forward to 2016.

December 2015 digest: adjudication, payment and a quiz

William Shakespeare, Sonnets: “How like a winter hath my absence been, from thee, the pleasure of the fleeting year! What freezings have I felt, what dark days seen! What old December’s bareness every where!” It was more than 40 years ago that Lord Denning said that cashflow was the “lifeblood” of the construction industry. It still is, and … Continue reading December 2015 digest: adjudication, payment and a quiz

July to December 2015, a half year case review

J K Rowling, Harry Potter and the Deathly Hallows: “‘Are you planning to follow a career in Magical Law, Miss Granger?’ asked Scrimgeour. ‘No, I’m not,’ retorted Hermione. ‘I’m hoping to do some good in the world!’” The second half of 2015 has seen a number of interesting decisions affecting construction and engineering practitioners. For ease, we … Continue reading July to December 2015, a half year case review

Christmas quiz 2015

Should Santa pay his Christmas parking fine? Do you know your stockings from your extensions? Our Christmas quiz is back, so go ahead and test your legal knowledge. For answers to all the questions, see our answers document.

Email arrangements over Christmas and the new year

Following business as usual this week, Practical Law Construction will send its last email of 2015 next week, to arrive in your inbox on Thursday 24 December 2015. We are then taking a break until the new year. The first email of 2016 will be sent to arrive in your inbox on Thursday 7 January 2016. … Continue reading Email arrangements over Christmas and the new year

November 2015 digest: Autumn Statement, penalties rule and dogs

John Clare, Remembrances: “Summers pleasures they are gone like to visions every one, and the cloudy days of autumn and of winter cometh on.” As November ends, so does autumn. It may mean the start of winter, but it also means it is time for the government’s Autumn Statement. This year, George Osborne said he was going … Continue reading November 2015 digest: Autumn Statement, penalties rule and dogs

Practical Law breakfast briefing on offshore contracts

Earlier this week I participated in Practical Law’s breakfast roundtable, Key clauses in offshore construction. The roundtable was led by Lucy Garrett and Calum Lamont, barristers at Keating Chambers. As I said when I wrote about the breakfast roundtable on mediation, while Chatham House rules do not permit me to reveal all that was said, what I … Continue reading Practical Law breakfast briefing on offshore contracts

October 2015 digest: seven year itch!

Ernest Hemingway: “For a long time now I have tried simply to write the best I can. Sometimes I have good luck and write better than I can.” Practical Law Construction turned seven this month. Over the last seven years, just like Ernest, we have done the best we can to keep our subscribers abreast of … Continue reading October 2015 digest: seven year itch!

September 2015 digest: prelude to autumn

John Keats, Complete Poems and Selected letters: “Season of mists and mellow fruitfulness, close bosom-friend of the maturing sun.” One of the coldest summers for several years has ended. Less an Indian summer (which is described as a “period of unseasonably warm, dry weather that sometimes occurs in autumn in the Northern Hemisphere”), more a cool, damp … Continue reading September 2015 digest: prelude to autumn

August 2015 digest: payment notices and costs budgets

Sir Isaac Newton (attributed): “I don’t know what I may seem to the world, but as to myself, I seem to have been only like a boy playing on the sea-shore and diverting myself in now and then finding a smoother pebble or a prettier shell than ordinary, whilst the great ocean of truth lay all … Continue reading August 2015 digest: payment notices and costs budgets

The trials and tribulations of hybrid bonds

Caterpillar Motoren GmbH & Co KG v Mutual Benefits Assurance Company is the latest in a line of cases where the court had to decide whether a security instrument was an “on demand” bond or whether it was in the nature of a true guarantee.

Practical Law’s breakfast roundtable on mediation

Last week I participated in Practical Law’s breakfast roundtable, Using mediation to resolve your construction dispute – why and how?. The roundtable was led by Rosemary Jackson QC and Elizabeth Repper, barristers and mediators at Keating Chambers. As I said when I wrote about the last breakfast roundtable on liquidated damages, while Chatham House rules do … Continue reading Practical Law’s breakfast roundtable on mediation

July 2015 digest: Aspect (again), the Budget and comment

F Scott Fitzgerald, The Great Gatsby: “And so with the sunshine and the great bursts of leaves growing on the trees, just as things grow in fast movies, I had that familiar conviction that life was beginning over again with the summer.” In the aftermath of the Supreme Court’s judgment in Aspect v Higgins (that there is an … Continue reading July 2015 digest: Aspect (again), the Budget and comment

January to June 2015, a half year case review

Lord Denning, Parker v Parker: “What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The … Continue reading January to June 2015, a half year case review

June 2015 digest: Aspect v Higgins and an electronic filing pilot

Geoffrey Boycott, on the best way to play Shane Warne: “My tactic would be to take a quick single and observe him from the other end.” We haven’t had a sporting reference for quite some time in the monthly digest, but the Ashes are almost upon us. With England having won the one-day series against New … Continue reading June 2015 digest: Aspect v Higgins and an electronic filing pilot

May 2015 digest: the Queen’s Speech, courts and comment

Douglas Adams, The Restaurant at the End of the Universe: “…one of the many major problems with governing people is that of whom you get to do it; or rather of who manages to get people to let them do it to them… anyone who is capable of getting themselves made President should on no account … Continue reading May 2015 digest: the Queen’s Speech, courts and comment

Practical Law’s breakfast roundtable on liquidated damages

Last week I participated in Practical Law’s breakfast roundtable, Liquidated damages at a turning point?. The roundtable was led by Adrian Williamson QC and William Webb, barristers at Keating Chambers. As I said when I wrote about the last breakfast roundtable on adjudication, while Chatham House rules do not permit me to reveal all that … Continue reading Practical Law’s breakfast roundtable on liquidated damages

April 2015 digest: CDM 2015 (again), PD 51J and PAPs

Elizabeth Bentley, Ode to Spring: “Welcome, sweet season of delight, What beauties charm the wond’ring sight.” April has been a quiet month in terms of construction current awareness. In part, this may have been because the pre-election purdah period started on 30 March and the TCC’s Easter term only began on 14 April. One wonders if this is … Continue reading April 2015 digest: CDM 2015 (again), PD 51J and PAPs

March 2015 digest: adjudication, CDM 2015 and an election

Leo Tolstoy, War and Peace: “Writing laws is easy, but governing is difficult.” It is less than six weeks to the general election. While the media’s current focus is on the live TV debates and who will take part and when, quietly in the background the government has been getting its house in order. This … Continue reading March 2015 digest: adjudication, CDM 2015 and an election

Payment rules reviewed by the back door of adjudication enforcement?

Ever since the payment rules in the Construction Act 1996 were amended, we have been waiting for parties to argue over them and for the TCC to give its guidance on them. Each year in January, we have suggested that this might be the year when that guidance would be forthcoming. Even at the start of this … Continue reading Payment rules reviewed by the back door of adjudication enforcement?

Practical Law’s breakfast roundtable on adjudicator nomination

Last week I participated in Practical Law’s breakfast roundtable, Adjudication appointment tactics: The do’s and don’ts following recent case law. The roundtable was led by Fionnuala McCredie QC and Paul Bury, barristers at Keating Chambers, and Suber Akther, solicitor-advocate at Siemens plc, who were the legal team involved in Eurocom Ltd v Siemens plc. The workshop explored the … Continue reading Practical Law’s breakfast roundtable on adjudicator nomination

February 2015 digest: CDM 2015 and public procurement

Algernon Charles Swinburne,  Atalanta in Calydon: “For winter’s rains and ruins are over and all the season of snows and sins… And in green underwood and cover, blossom by blossom the spring begins.” The first signs of spring may still feel a long way off but 6 April isn’t. In case you are unaware of the date’s … Continue reading February 2015 digest: CDM 2015 and public procurement

CDM 2015: Can a client appoint a principal designer for part of the project?

The Construction (Design and Management) Regulations 2015 (SI 2015/51) (CDM 2015) are in force from 6 April 2015. Putting aside the CDM 2015’s transitional arrangements, it is not immediately clear whether a client may appoint a principal designer for only the first part of the project.

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 … Continue reading January 2015 digest: looking forward, it’s all about CDM 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.

December 2014 digest: Autumn Statement, NIP 2014 and pay less notices

Jane Austen, Sense and Sensibility: “Lady Middleton… exerted herself to ask Mr Palmer if there was any news in the paper. ‘No, none at all,’ he replied, and read on.” It is often said that today’s news is tomorrow’s fish ‘n’ chip paper (even if only metaphorically, since they use white paper nowadays!). Whether that … Continue reading December 2014 digest: Autumn Statement, NIP 2014 and pay less notices

July to December 2014, a half year case review

Abraham Lincoln: “Let me not be understood as saying that there are no bad laws, nor that grievances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing. But I do mean to say that although bad laws, if they exist, should be repealed … Continue reading July to December 2014, a half year case review

Email arrangements over Christmas and the new year

Following business as usual this week, Practical Law Construction will send its last email of 2014 next week, to arrive in your inbox on Wednesday 24 December 2014. We are then taking a break until the new year. The first email of 2015 will be sent to arrive in your inbox on Thursday 8 January 2015. This email … Continue reading Email arrangements over Christmas and the new year

Adjudicating under a RIBA or JCT domestic building contract

When advising on a home project there has never been a “right” answer to the question of which contract to choose. As is so often the case, the choice of contract should be governed by the needs of the parties and the project. To date, domestic parties have had to look to the JCT’s home owner/occupier contracts or … Continue reading Adjudicating under a RIBA or JCT domestic building contract

November 2014 digest: autumn, ANBs in adjudication and “plebgate”

John Clare, Remembrances: “Summer’s pleasures they are gone like to visions everyone, and the cloudy days of autumn and of winter cometh on. I tried to call them back but unbidden they are gone, far away from heart and eye and forever far away.” The weather is always close to our hearts and no more … Continue reading November 2014 digest: autumn, ANBs in adjudication and “plebgate”

October 2014 digest: happy sixth birthday to us

Plautus: “Let us celebrate the occasion with wine and sweet words.” How time flies. This month, Practical Law Construction celebrated its sixth birthday. It doesn’t seem like five minutes since we launched the service but, since then, we have covered all of the key developments in the construction industry, with an eye on the practical implications. As … Continue reading October 2014 digest: happy sixth birthday to us

September 2014 digest: autumn leaves and misty mornings

Dylan Thomas, Collected Poems: “And I rose in rainy autumn, and walked abroad in a shower of all my days…” September has been a warmer and drier month than on average, but autumn is now in full swing and the leaves are starting to turn and fall. That means the Michaelmas court term is about … Continue reading September 2014 digest: autumn leaves and misty mornings

August 2014 digest: autumn approaches

Lord Byron, Don Juan, st.42: “The English winter – ending in July, To recommence in August.” As the quote suggests, August has not been the warmest of summer months this year and autumn feels as if it is approaching fast. The end of endless sunshine seemed to coincide with the start of the school holidays and, … Continue reading August 2014 digest: autumn approaches

July 2014 digest: Denton and JCT

John Steinbeck, Travels with Charley: In Search of America: “What good is the warmth of summer, without the cold of winter to give it sweetness.” Just like June, July has continued to be hot and sunny and to offer us a veritable feast of sport, with the World Cup finals (and Germany as the ultimate victors), Wimbledon, international … Continue reading July 2014 digest: Denton and JCT

January to June 2014, a half year case review

Aristotle: “How many a dispute could have been deflated into a single paragraph if the disputants had dared to define their terms.” The first half of 2014 has seen a number of important decisions affecting construction and engineering practitioners. However, we have not included cases arising from the Jackson reforms, particularly costs management and relief from sanctions … Continue reading January to June 2014, a half year case review

June 2014 digest: cricket, Wimbledon and the World Cup

Thomas Carew, A Song: “Ask me no more where Jove bestows, when June is past, the fading rose; For in your beauty’s orient deep, these flowers, as in their causes, sleep.” June represents the start of summer, with roses in bloom and the summer solstice. June 2014 has been one of the warmest on record, which … Continue reading June 2014 digest: cricket, Wimbledon and the World Cup

May 2014 digest: all change at the TCC

Robert Louis Stevenson, Epilogue of the Cigar Divan: “These are my politics; to change what we can; to better what we can; but still to bear in mind that man is but a devil weakly fettered by some generous beliefs and impositions.” Although last month’s digest was all about change, an important change for construction … Continue reading May 2014 digest: all change at the TCC

April 2014 digest: “the times they are a-changin”

Bob Dylan, Times they are a changing: “Come writers and critics who prophetize with your pen, keep your eyes wide, the chance won’t come again And don’t speak too soon for the wheel’s still in spin, and there’s no tellin’ who that it’s namin’ For the loser now might be later to win, for the times … Continue reading April 2014 digest: “the times they are a-changin”

March 2014 digest: spring time

Percy Bysshe Shelley, The Question: “I dreamed that, as I wandered by the way, bare winter suddenly was changed to spring.” This month, with the vernal equinox on 20 March, winter officially turned to spring in the northern hemisphere. It was a time when day and night were the same length and it heralded the start of warmer and sunnier days … Continue reading March 2014 digest: spring time

February 2014 digest: Jackson reforms, adjudication and auroras

Wikipedia: “An aurora (from the Latin word aurora, “sunrise” or the Roman goddess of dawn) is a natural light display in the sky particularly in the high latitude (Arctic and Antarctic) regions, caused by the collision of energetic charged particles with atoms in the high altitude atmosphere (thermosphere).” February is sometimes described as a bridge … Continue reading February 2014 digest: Jackson reforms, adjudication and auroras

Floods, storms and tempests: what does your contract say?

The human impact of this winter’s extreme weather has been telling. Householders, farmers, businesses small and large have all been affected. Many building sites will be waterlogged, if not flooded, hindering heavy plant access and causing myriad practical issues, if work is to continue. Urgent repair and remediation projects must start straight away, often with … Continue reading Floods, storms and tempests: what does your contract say?

January 2014 digest: flooding and future events

William Wordsworth, Resolution and Independence: “There was a roaring in the wind all night, the rain came heavily and fell in floods, but now the sun is rising, calm and bright.” Our monthly digest often starts with a weather-related quote, and this month is no exception, what with all the rain and flooding that the … Continue reading January 2014 digest: flooding and future events

Patent defect or latent defect: does it matter?

Academics and judges have spent many hours discussing and identifying the difference between a latent defect and a patent defect in a construction project. But does the distinction matter? This post considers a defect that appears just after the contractual defects liability period has expired and argues that the distinction does matter, but perhaps not … Continue reading Patent defect or latent defect: does it matter?

Welcome to 2014

Alfred, Lord Tennyson, Ring out, wild bells: “Ring out the old, ring in the new, Ring, happy bells, across the snow. The year is going, let him go. Ring out the false, ring in the true.” As one year ends, so another year begins. Practical Law has been reflecting on events in 2013 and looking … Continue reading Welcome to 2014

December 2013 digest: Merry Christmas everybody

As it is almost upon us, what better way to start December’s digest than with a little bit of Slade’s Merry Christmas everybody: “So here it is merry Christmas Everybody’s having fun Look to the future now It’s only just begun” December is often a month of reflection, not only for the events in December, but … Continue reading December 2013 digest: Merry Christmas everybody

July to December 2013, a half year case review

Francis Bacon, Of Great Place: “Set it down to thyself, as well to create good precedents as to follow them.” The second half of 2013 has seen a number of important decisions affecting construction and engineering practitioners.

E-mail arrangements over Christmas and the new year

White Christmas: “I’m dreaming of a white Christmas Just like the ones I used to know Where the treetops glisten and children listen To hear sleigh bells in the snow.” Following business as usual this week, Practical Law Construction will send its last e-mail of 2013 next week, to arrive in your inbox on Thursday 19 … Continue reading E-mail arrangements over Christmas and the new year

November 2013 digest: adjudication, insolvency and “plebgate”

John Clare, Autumn: “The summer-flower has run to seed, and yellow is the woodland bough; And every leaf of bush and weed is tipt with autumn’s pencil now.” Weather-wise, November has seemed milder and calmer than normal. We may have had a bit of wet and windy weather at the start of the month, with some cold days … Continue reading November 2013 digest: adjudication, insolvency and “plebgate”

October 2013 digest: happy fifth birthday to us

Practical Law Construction: Before two-thousand-and-eight You had a lot on your plate On law to advise Words blurring your eyes What was to be your poor fate? Now in two-thousand-thirteen We’re five years old and still keen All those tweaks to the Acts Myriad cases and facts We make sure that the best bits are … Continue reading October 2013 digest: happy fifth birthday to us

September 2013 digest: it was all about collateral warranties

Jennifer Hanson, Collateral Damage: “The sweet September rain chased away the sun Darkened up my skies as sorrow sweetly hung.” As autumn approaches, so does the start of the Michaelmas court term. While the majority of court users may have been enjoying the summer recess (and the end of  a wonderful summer), a small team went before Akenhead J … Continue reading September 2013 digest: it was all about collateral warranties

August 2013 digest: Ask and the Ashes

Lewis Carroll, Alice’s Adventures in Wonderland: “I have answered three questions, and that is enough’, said his father; ‘don’t give yourself airs! Do you think I can listen all day to such stuff?’” July 2013 may have been the third warmest and third sunniest on record (and the driest since 2006), but it all went … Continue reading August 2013 digest: Ask and the Ashes

Are adjudication costs recoverable in subsequent litigation?

Adjudication doesn’t come cheap. In recent years, the cost of adjudicating has become one of the most common criticisms of the whole process. As we are often reminded, it was always meant to be about cashflow, to introduce a process that was interim-binding and that would allow the parties to keep working together while, at the … Continue reading Are adjudication costs recoverable in subsequent litigation?

Ask the team: is it safe to use correspondence as a contract document?

As the employer and contractor on a construction and engineering project get ever closer to concluding negotiations and signing their building contract, they are often settling technical details of design or specification. Typically, they do so by e-mails, or perhaps minuted meetings. Should those emails or minutes form part of the final contract?

July 2013 digest: another summer of sport and the Royal family

JM Barrie, Peter Pan: “When the first baby laughed for the first time, the laugh broke into a thousand pieces and they all went skipping about, and that was the beginning of fairies.” This time last year we were all talking about the Queen’s jubilee celebrations and the start of the London 2012 Olympic Games … Continue reading July 2013 digest: another summer of sport and the Royal family

Ask the team: can I issue contracts with electronic copies of drawings?

The documents included in a building contract can be voluminous. In particular, the works may be described in numerous technical drawings, each of which is large and expensive to reproduce. Can parties save time and money by inserting electronic copies into a building contract, perhaps saved onto a CD-ROM?

January to June 2013, a half year case review

Aristotle: “How many a dispute could have been deflated into a single paragraph if the disputants had dared to define their terms.” The first half of 2013 has seen a number of important decisions affecting construction and engineering practitioners:

June 2013 digest: spending review and infrastructure investment

Robert Louis Stevenson, A Christmas Sermon: “To be honest, to be kind – to earn a little and to spend a little less…” These words may have been written at the end of the nineteenth century but still ring true today, especially in light of the Chancellor’s latest spending review. While he may argue he … Continue reading June 2013 digest: spending review and infrastructure investment

Ask the team: what’s the difference between sectional completion and partial possession?

…and does it matter? Question: the employer on our construction project wants to start fitting out one part of a project before the rest is finished. Should it just take partial possession of that part when the time comes or should it provide for sectional completion from the start?

May 2013 digest: BIM, BIM and more BIM

William Shakespeare, Sonnet 18: “Shall I compare thee to a summer’s day? Thou art more lovely and more temperate; Rough winds do shake the darling buds of May, and summer’s lease hath all too short a date.” We ended last month’s digest with a reference to the weather. It seems our jubilation at the sun’s … Continue reading May 2013 digest: BIM, BIM and more BIM

Ask the team: is the Scheme missing some payment terms?

My client, a sub-contractor, is working under an oral construction contract and wants to get paid. I know that the Scheme for Construction Contracts 1998 applies, but reading the Scheme by itself leaves me with unanswered questions about the payment process. What am I missing?

April 2013 digest: it’s all change this month

AA Milne, When we were very young: “They’re changing guard at Buckingham Palace – Christopher Robin went down with Alice.” The Palace guards may change daily but we all know that the pace of change is much slower in the legal world. That said, the sweeping reforms of the civil justice system, which came into force … Continue reading April 2013 digest: it’s all change this month

Ask the team: does my contract need a priority of documents clause?

Some forms of contract include a priority of documents clause, others do without them. So what is the correct approach? Should your building contract, sub-contract or professional appointment include a priority of documents clause? Does the recent TCC decision in RWE Npower Renewables v J N Bentley have anything to add?

March 2013 digest: will the winter ever end?

Lewis Carroll, Alice’s Adventures in Wonderland and Through the Looking-Glass: “I wonder if the snow loves the trees and fields, that it kisses them so gently? And then it covers them up snug, you know, with a white quilt; and perhaps it says ‘Go to sleep, darlings, till the summer comes again’.” It may officially … Continue reading March 2013 digest: will the winter ever end?

Ask the team: can the Construction Act or Late Payment Act help me shorten an agreed payment period?

This month’s Ask the team considers what statutory rights, if any, a supplier (be that a professional consultant, a building contractor, sub-contractor or materials supplier) may have to improve their cashflow, if they agreed a long payment cycle that they now regret.

NEC contracts are considered by the courts

The Chinese year of the snake has just started. Hello to the year of the snake, goodbye to the year of the dragon. This got us thinking: perhaps it’s time to slay a construction law dragon. There’s a common saying among lawyers and commentators that NEC contracts are rarely before the courts. We’re not sure … Continue reading NEC contracts are considered by the courts

February 2013 digest: snowdrops and spring

John Steinbeck: “What good is the warmth of summer, without the cold of winter to give it sweetness.” These words may seem apt this month, with its cold grey days. Snowdrops have appeared, which is a sure sign spring is on its way. While we wait for longer, warmer days, we also await the “big bang” of the Jackson … Continue reading February 2013 digest: snowdrops and spring

Ask the team: is a development management agreement caught by the Construction Act?

This month’s Ask the team considers what a development management agreement (or development project management agreement) is and whether it is caught by the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996).

January 2013 digest: bonds, guarantees and privilege

Christina Rossetti, In the Bleak Midwinter: “In the bleak midwinter, frosty wind made moan, Earth stood hard as iron, water like a stone; Snow had fallen, snow on snow, snow on snow, In the bleak midwinter, long ago.” Christina’s words seem apt for the weather the country has experienced this month. While our thoughts may … Continue reading January 2013 digest: bonds, guarantees and privilege

Ask the team: do the CDM Regulations apply to offshore wind farms?

This month’s Ask the team considers the relevance of the Construction (Design and Management) Regulations 2007 (CDM 2007) to offshore wind farms.

The (Hackney) Empire strikes back

A contractor whose progress and performance are unsatisfactory presents an employer with a number of options as to how to proceed. Whichever option the employer chooses, it will be wise to bear in mind the implications of that course of action for other interested parties, including a bondsman of the contractor’s obligations (as in the … Continue reading The (Hackney) Empire strikes back

The dawn of 2013

WE Gladstone, Speech on the Reform Bill: “You cannot fight against the future. Time is on our side.” As one year ends, so another year begins. We have been reflecting on events in 2012 and looking forward to 2013.

December 2012 digest: reflecting on a year gone by

Band Aid’s, Do they know it’s Christmas time: “And in our world of plenty, we can spread a smile of joy! Throw your arms around the world at Christmas time.” The holiday period is almost upon us, and so is a period of reflection, not only for the events in December, but for the rest … Continue reading December 2012 digest: reflecting on a year gone by

July to December 2012, a half year case review

Edmund Burke, Speech on concilliation with America, 1775: “It is not, what a lawyer tells me I may do; but what humanity, reason, and justice, tell me I ought to do.” The second half of 2012 has seen a number of important decisions affecting construction and engineering practitioners:

E-mail arrangements over Christmas and the new year

Frosty the Snowman: “Frosty the snowman was a jolly happy soul With a corncob pipe and a button nose and two eyes made out of coal.” Following business as usual this week, PLC Construction will send its last e-mail of 2012 next week, to arrive in your inbox on Thursday 20 December 2012. We are then taking … Continue reading E-mail arrangements over Christmas and the new year

Ask the team: will my claim succeed if it relies on complex structure theory?

This month’s Ask the team considers the viability of a claim for pure economic loss based on complex structure theory.

November 2012 digest: adjudicators’ fees and severing their decisions

William Wordsworth, Resolution and Independence: “There was a roaring in the wind all night, the rain came heavily and fell in floods, but now the sun is rising, calm and bright.” Our monthly digest often starts with a weather-related quote, and this month is no exception, what with all the rain and flooding that the … Continue reading November 2012 digest: adjudicators’ fees and severing their decisions

Ask the team: can a contractor claim an extension of time after practical completion?

A subscriber recently asked whether a contractor under a JCT contract can claim an extension of time after the contract administrator has issued a certificate of practical completion.

October 2012 digest: fork handles, four candles and adjudicators’ fees

John Clare, Remembrances: “Summer’s pleasures they are gone like to visions everyone. And the cloudy days of autumn and of winter cometh on. I tried to call them back but unbidden they are gone.” In the 1970’s, the Two Ronnies made famous a sketch about four candles, or was it fork handles? During October, PLC … Continue reading October 2012 digest: fork handles, four candles and adjudicators’ fees

Ask the team: what if damage is discovered after party wall work is completed?

What happens if the adjoining owner’s property is damaged when the building owner carries out his works, but the damage isn’t discovered until much later, after the building owner’s works have been completed? In this scenario, let us assume that in 2009, the building owner gave the relevant party wall notices and a party wall … Continue reading Ask the team: what if damage is discovered after party wall work is completed?

Were the Construction Act 1996 amendments another Y2K?

This time last year most construction practitioners were preoccupied with the amendments to the Construction Act 1996 (which had just come into force) and the impact of those amendments on their business. One year on, we decided to look at whether, in fact, 2011 was all a bit like Y2K, with the impact far less than was anticipated and with … Continue reading Were the Construction Act 1996 amendments another Y2K?

September 2012 digest: sun sets on sporting achievements

Elbert Hubbard: “Know what you want to do, hold the thought firmly, and do every day what should be done, and every sunset will see you that much nearer the goal.” The sun has finally set on an amazing summer of sport, with the closing ceremony of the Paralympic Games held earlier this month. Again, … Continue reading September 2012 digest: sun sets on sporting achievements

Ask the team: what is a snagging list and how should it be used?

We recently received a number of queries about parties’ rights and obligations relating to a snagging list. While all the queries related to JCT forms of contract, in practice the term “snagging list” is used in a variety of situations and can mean different things to different people. For example, a straw poll of PLC editors revealed … Continue reading Ask the team: what is a snagging list and how should it be used?

August 2012 digest: arbitration, adjudication and litigation

Pierre de Coubertin, the father of the modern Olympic Games: “The most important thing in the Olympic Games is not winning but taking part; the essential thing in life is not conquering but fighting well.” We are partway through the London 2012 Olympic Games and Paralympic Games and, so far, the British team has exceeded … Continue reading August 2012 digest: arbitration, adjudication and litigation

Costs management moves a step closer

Over the last year or so, we have posted a number of pieces about costs management. Initially we looked at the extension of the Birmingham costs pilot into all TCC and Mercantile Courts and, subsequently, sought to encourage practitioners to take part in the survey that was reporting on the extended pilot. Michael Mendelblat also drew … Continue reading Costs management moves a step closer

Ask the team: could paying the contract administrator a percentage fee damage its independence?

A subscriber recently asked whether, if the employer under a building contract paid its contract administrator a percentage of the contract sum, that might affect the professional consultant’s duty to act independently and impartially. This Ask the team considers some of the practical and legal questions involved, and suggests ways of avoiding the issue.

July 2012 digest: let the Games begin!

Shakespeare’s The Tempest: “Be not afeard; the isle is full of noises, Sounds and sweet airs, that give delight and hurt not. Sometimes a thousand twangling instruments Will hum about mine ears, and sometime voices That, if I then had waked after long sleep, Will make me sleep again: and then, in dreaming, The clouds … Continue reading July 2012 digest: let the Games begin!

Ask the team: what is the net basis approach for extensions of time?

A subscriber recently asked us what was meant by the “net basis” (as opposed to the “gross basis”) for calculating an extension of time due to a contractor under a construction or engineering contract. This is just one part of the issues that surround concurrent delay in construction contracts and this post uses a simple … Continue reading Ask the team: what is the net basis approach for extensions of time?

January to June 2012, a half year case review

Sir Edward Coke, Institutes: Commentary upon Littleton: “Reason is the life of the law, nay the common law itself is nothing else but reason…  The law, which is the perfection of reason.” The first half of 2012 has seen a number of important decisions affecting construction and engineering practitioners:

June 2012 digest: a diamond jubilee and the jet stream

Alfred, Lord Tennyson, To the Queen: “Her court was pure; her life serene; God gave her peace; her land reposed; A thousand claims to reverance closed, in her as Mother, Wife and Queen.” As a nation, we are obsessed with the weather. Regular readers of this digest will know that it features prominently here too. … Continue reading June 2012 digest: a diamond jubilee and the jet stream

Ask the team: Can I start an adjudication, stop and then start again?

Subscribers have recently asked two related questions about starting an adjudication: What should the referring party do if it thinks it will miss the deadline for serving the referral notice? Can a referring party start an adjudication, then stop and start the process over again? Does this also apply to the responding party?

May 2012 digest: Queen’s Speech and bonds

F. Scott Fitzgerald, The Great Gatsby: “And so with the sunshine and the great bursts of leaves growing on the trees, just as things grow in fast movies, I had that familiar conviction that life was beginning over again with the summer.” Summer has finally arrived and, after all the rain over the last couple … Continue reading May 2012 digest: Queen’s Speech and bonds

Ask the team: the building contractor has been replaced, do I need new sub-contractor and professional consultant collateral warranties?

The answer to our subscriber’s question depends on the precise circumstances. This blog post considers the situation on a commercial property development, where works are ongoing and collateral warranties have been provided to a landlord, funder or tenant.

Natural justice in adjudication in 2012

When Coulson J came to prepare for the second edition of his book, Coulson on Construction Adjudication (Oxford University Press, 2011), he must have realised just how far the law on natural justice had moved forward in the three years since the first edition was published (in 2007). Instead of just one chapter, the second edition … Continue reading Natural justice in adjudication in 2012

April 2012 digest: showers, fires and IT issues

From Walt Disney’s Bambi: “Drip drip drop, little April shower, what can compare with your beautiful sound? Beautiful sound, beautiful sound, drip, drop, drip, drop.” The spring blossom is falling like snow because of the showers and winds that many of us are experiencing at the moment. It may be good news for gardeners and farmers, … Continue reading April 2012 digest: showers, fires and IT issues

Do you know who is in charge of the UK construction industry?

According to the Department for Business, Innovation and Skills (BIS), the UK construction industry consists of over 300,000 firms employing over two million people and it contributed 8.3% of the nation’s GVA (Gross Value Added) in 2008. Given its undoubted importance, who is in charge of this important part of our economy? Do we even … Continue reading Do you know who is in charge of the UK construction industry?

Ask the team: what is the best building contract for construction work to a home?

Work to a privately owned residential property can range from a large, complex project to simple, cheap works. While the underlying issues are often similar to those on other construction projects, the forms of contract can be very different.

March 2012 digest: the environment, the budget and spring

Algernon Charles Swinburne, Atalanta in Calydon: “For winter’s rains and ruins are over, and all the season of snows and sins; … And in green underwood and cover, blossom by blossom the spring begins.” March heralds the start of spring. It’s a month that is traditionally associated with the vernal equinox, the move to British … Continue reading March 2012 digest: the environment, the budget and spring

Influencing costs management (before it is too late)

Costs management is just one aspect of Jackson LJ’s extensive civil litigation costs reforms, which are expected to come into effect in 2013. As part of the roll-out of the reforms, Jackson LJ is giving a series of lectures, designed to “explain the reforms and the thinking behind them”. His latest, the thirteenth, focused on the … Continue reading Influencing costs management (before it is too late)

Ask the team: what is the Considerate Contractor Scheme?

Almost everyone has heard of the considerate constractor schemes, but what are they, what areas do they cover and why do they matter?

Adjudication and limitation: adjudication unlimited? (Part 2)

Recently, I had reason to think about whether the Limitation Act 1980 applies to adjudication. Is it possible that there is no time limit for bringing an adjudication? If it doesn’t, and there is no limit, that would enable a party to refer a dispute to adjudication years or even decades after the accrual of a cause of action.

February 2012 digest: spring is in the air

Percy Bysshe Shelley, The Sensitive Plant: “And spring arose on the garden fair, like the spirit of love felt everywhere; And each flower and herb on earth’s dark breast rose from the dreams of its wintry rest.” Spring is here, with the first signs of flowering bulbs, buds breaking through and birdsong in the air. With thoughts of … Continue reading February 2012 digest: spring is in the air

Justice, like the Ritz, is open to all

This quote, generally attributed to Matthew LJ in the nineteenth century, needs to be adapted if what is desired is the TCC’s justice. That is the effect of West Country Renovations v McDowell, decided by Akenhead J on 23 February 2012.

Ask the team: what’s the difference between “reasonable skill and care” and “all reasonable skill and care”?

A professional consultant or design and build contractor’s duty of care is usually expressed as requiring it to exercise “reasonable skill and care” or “all reasonable skill and care”. Does the “all” add anything and, if so, what?

It’s time to have your say about costs management

A little over four months ago, the costs management pilot that had been running in Birmingham was extended to all TCC and mercantile courts until 30 September 2012. The team monitoring the pilot has now published an interim report. Some may consider it odd that an interim report has been published so early into the pilot, … Continue reading It’s time to have your say about costs management

January 2012 digest: implied terms, party walls and procurement

Samuel Taylor Coleridge, Work Without Hope: “And Winter slumbering in the open air, wears on his smiling face a dream of Spring!” Before we turn our attention to events in 2012, it is sensible to start with two cases from the very end of 2011 (and ones that (almost) got away). After last month’s digest was … Continue reading January 2012 digest: implied terms, party walls and procurement

Ask the team: what is an architect’s lien and when can I use one?

A lien is a right that entitles a party to hold on to assets in its possession pending payment of a debt owed to it. Specifically for architects (and other professionals), if the architect has prepared plans, it may hold those plans pending payment by its client. In England and Wales it is relatively rare … Continue reading Ask the team: what is an architect’s lien and when can I use one?

Fitness for purpose: the case against

There has been a great deal of debate about fitness for purpose v reasonable skill and care in these columns. This is a look at the topic from a slightly different point of view.

Welcome to 2012

Alfred, Lord Tennyson, Ring out, wild bells: “Ring out the old, ring in the new, Ring, happy bells, across the snow. The year is going, let him go. Ring out the false, ring in the true.” As one year ends, so another year begins. PLC has been reflecting on events in 2011 and looking forward to … Continue reading Welcome to 2012

December 2011 digest: new content and a Christmas quiz

William Shakespeare, Sonnets: “How like a winter hath my absence been, From thee, the pleasure of the fleeting year! What freezings have I felt, what dark days seen! What old December’s bareness everywhere!” During December, we continued where we left off at the end of November, with more new and updated content. We published seven … Continue reading December 2011 digest: new content and a Christmas quiz

July to December 2011, a half-year case review

Charles Dickens, Oliver Twist: “‘If the law supposes that,’ said Mr Bumble… ‘the law is a ass – a idiot.’”: The second half of 2011 has seen a number of important decisions affecting construction and engineering practitioners, including:

Ask the team: what’s the difference between a letter of intent and a PCSA?

An employer, such as a property developer, may need to involve a contractor in a project before it is ready to sign a building contract. This is sometimes generically known as early contractor involvement (ECI), and can take place on a formal or informal basis. Two common types of agreement between an employer and a … Continue reading Ask the team: what’s the difference between a letter of intent and a PCSA?

E-mail arrangements over Christmas and the new year

Slade’s Merry Christmas Everybody: “So here it is merry Christmas, everybody’s having fun. Look to the future now, It’s only just begun.” Following business as usual this week, PLC Construction will send its last e-mail of 2011 next week, to arrive in your inbox on Thursday 22 December 2011. We are then taking a break until the … Continue reading E-mail arrangements over Christmas and the new year

November digest 2011: new standard documents and adjudication

Percy Bysshe Shelley, Hymn to intellectual beauty: “There is a harmony in autumn, and a lustre in its sky, which through the summer is not heard or seen, as if it could not be, as if it had not been!” As November ends, so does autumn. The days are getting shorter and the nights are lengthening as the … Continue reading November digest 2011: new standard documents and adjudication

Can the employer use signed draft documents in place of fresh engrossments?

This post uses a recent case to consider whether a draft collateral warranty, signed as a deed, can be used by an employer in place of a formal engrossment. Can an employer complete the missing details and use the collateral warranty to give rights to a beneficiary? Might a contractor be able to stop the … Continue reading Can the employer use signed draft documents in place of fresh engrossments?

Do adjudication rules’ costs provisions comply with amended Construction Act 1996?

There has been considerable debate over the meaning of section 108A of the Construction Act 1996 (as introduced by the LDEDC Act 2009). Most of that debate has centred on the interpretation of section 108A(2) and whether imprecise drafting means that something like a Tolent clause may still be permitted in certain circumstances. However, some … Continue reading Do adjudication rules’ costs provisions comply with amended Construction Act 1996?

Ask the team: what is Building Information Modelling (BIM)?

Building Information Modelling (BIM) has been around in the US for a while; now it is coming to the UK. What is it and why does it matter?

October 2011 digest: our third birthday

Lewis Carroll, Through the Looking Glass: “I mean, what is an un-birthday present? A present given when it isn’t your birthday, of course. Alice considered a little. ‘I like birthday presents best’, she said at last.” Amazingly, this month saw PLC Construction turn three. Back in 2008 when we launched, the industry was in the … Continue reading October 2011 digest: our third birthday

Ask the team: can I combine a payment notice and a pay less notice into one notice?

By now, most construction practitioners will be aware that Part II of the Construction Act 1996 has been amended by Part 8 of the LDEDC Act 2009. Among the many changes, this has introduced the pay less notice (in place of the withholding notice). Therefore, the two key notices under the Construction Act 1996 (as amended) are: … Continue reading Ask the team: can I combine a payment notice and a pay less notice into one notice?

Should I be worried about the costs management pilot?

The extension of the costs management pilot came into effect over the weekend (on 1 October). From now until the pilot ends on 30 September 2012, any case in the TCC and Mercantile Courts that has its first case management conference (CMC) during the pilot period, will be subject to the pilot. As such, the parties will … Continue reading Should I be worried about the costs management pilot?

September 2011 digest: D-day for Construction Act changes and costs pilot

TS Eliot, Little Gidding: “What we call the beginning is often the end, and to make an end is to make a beginning. The end is where we all start from.” We are on the home straight when it comes to the Construction Act 1996 changes coming into force. As 1 October fast approaches, we … Continue reading September 2011 digest: D-day for Construction Act changes and costs pilot

Ask the team: do the ICC Conditions comply with the Construction Act 1996 (as amended)?

Clause 60(10) of the Infrastructure Conditions of Contract (ICC Conditions) retains withholding notice provisions despite the Construction Act 1996 (as amended) replacing withholding notices with pay less notices. Does this mean that the contract fails to comply with new statutory regime?

August 2011 digest: riots, the clean-up and cricket

William Shakespeare, Richard II: “His rash fierce blaze of riot cannot last, for violent fires soon burn out themselves.” August saw some of the worst civil commotion in decades, with riots in a number of English cities. Once the violence and looting was over, the clean-up began. The impact goes much wider than just the … Continue reading August 2011 digest: riots, the clean-up and cricket

Ask the team: do the adjudication provisions of the Scheme always apply wholesale under the Construction Act 1996 (as amended)?

What happens if a construction contract fails to comply with the adjudication requirements of the Construction Act 1996 (as amended)? In particular, what if a Tolent clause offends the Construction Act 1996 (as amended)? Will the Scheme for Construction Contracts 1998’s adjudication provisions replace all the contractual adjudication provisions?

July 2011 digest: effective dates, new Schemes and more adjudication cases

JM Keynes, The End of Laissez-Faire: “The important thing for Government is not to do things which individuals are doing already, and to do them a little better or a little worse; but to do those things that at present are not done at all.” Last month we were still awaiting an effective date for … Continue reading July 2011 digest: effective dates, new Schemes and more adjudication cases

Ask the team: I’m training my team on the changes to the Construction Act 1996…

…where should I start? If you are a construction lawyer or a commercial manager who needs to understand how the changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996, also known as the HGCRA 1996) will affect construction contracts, this Ask the team gives you the basics, based on PLC Construction’s materials. In particular, we suggest … Continue reading Ask the team: I’m training my team on the changes to the Construction Act 1996…

Can the court correct mistakes adjudicators make?

In March 2011, Edwards-Stuart J gave a talk to the Scottish Building Contract Committee and the Society of Construction Law (SCL) in Edinburgh. The SCL has now published his paper for the benefit of all those unable to attend that meeting. The paper, When the adjudicator gets it horribly wrong, refers to the fact that … Continue reading Can the court correct mistakes adjudicators make?

January to June 2011, a half-year case review

Solon (630-555 BC), Diogenes Laertius, Lives of the Emminent Philosphers: “Laws are like spiders’ webs: if some poor creature comes up against them, it is caught; but a bigger one can break through and get away.” The first half of 2011 has seen a number of important decisions affecting construction and engineering practitioners.

June 2011 digest: JCT contract changes and the rain

As Benjamin Disraeli said in 1867: “Change is inevitable. In a progressive country change is constant.” June has been a month of changes, not only with shifts in the weather (obviously, Wimbledon started, and everyone knows it nearly always rains during Wimbledon), but also with details of the changes to the industry’s main suite of standard … Continue reading June 2011 digest: JCT contract changes and the rain

Ask the team: novation due to administration: what about the collateral warranties?

This Ask the team considers some of the practical issues that arise where a solvent employer agrees that the administrators of a contractor may novate the building contract from the original contractor (now in administration) to a replacement contractor.

Construction experts’ expertise and its regulation after Jones v Kaney

Much has been written about the anticipated impact that the Supreme Court’s decision in Jones v Kaney will have on expert witnesses and the evidence they give, whether they will need to change their behaviour in court or in the way they write their reports. Going forward, without the protection of expert immunity, it will … Continue reading Construction experts’ expertise and its regulation after Jones v Kaney

May 2011 digest: more bank holidays

“Never cast a clout until May is out.” This is a centuries old phrase that is generally taken to mean one shouldn’t discard winter clothing until the end of May. This year has been a bit different, with another record warm and dry month. To many of us, winter coats are a thing of our … Continue reading May 2011 digest: more bank holidays

I want to be paid. Should I adjudicate?

Picture the dilemma. A company was invited to tender for work and it provided a quotation (which included some standard terms and conditions) and then exchanged a number of letters with the employer’s representative. It didn’t sign anything and, although it started work, it didn’t get paid. The employer is now saying that because there isn’t a contract, it … Continue reading I want to be paid. Should I adjudicate?

Ask the team: Does the contractor own the float in an NEC3 Engineering and Construction Contract (ECC)?

Construction and engineering practitioners often summarise the NEC3 Engineering and Construction Contract’s (ECC) position on float with the words, “the contractor owns the float”. This is a useful maxim, but conceals a hidden trap.

April 2011 digest: a royal wedding and bank holidays

Martin Luther: “There is no more lovely, friendly and charming relationship, communion or company than a good marriage.” No summary of April would be complete without mentioning William and Kate’s wedding. Kate’s dress has a lot to live up to, but we can only speculate on what it may be like, going to press two days … Continue reading April 2011 digest: a royal wedding and bank holidays

6 months to go: should we fear the Construction Act 1996 changes?

On 12 April 2011, the SCL held one of its regular meetings. The subject was the forthcoming changes to the Construction Act 1996, under the title “Payment under the new Construction Act: practical dilemmas“. The meeting was chaired by Tony Blackler, with Rupert Choat and John Riches speaking. The changes to the Construction Act 1996 (in the … Continue reading 6 months to go: should we fear the Construction Act 1996 changes?

Ask the team: is there an implied right to revoke a copyright licence?

A professional consultant often produces important documents relating to a project, many of which are subject to copyright, such as architects’ plans or engineering schematics. This is valuable material, which clients derive obvious benefits from. Accordingly, the parties to a professional appointment usually negotiate specific provisions relating to copyright material; but what happens if the parties fail to … Continue reading Ask the team: is there an implied right to revoke a copyright licence?

March 2011 digest: political unrest, a Tsunami and the Budget

Harold Macmillan: “The wind of change is blowing through the continent. Whether we like it or not, this growth of national consciousness is a political fact.” The political unrest that has been spreading through the middle east dominated the headlines at the start of March but was overtaken by the catastrophic natural disaster in Japan, subsequent concerns … Continue reading March 2011 digest: political unrest, a Tsunami and the Budget

Ask the team: can I do without a retention?

Retentions seem to have been around since time immemorial. For their supporters, they are easy to administer and represent a sensible lever over contractors and sub-contractors, encouraging them to fix defects (or providing a fund to pay for the fix if they can’t or won’t remedy a defect themselves). However, the opponents of retentions are increasingly vocal. So, why … Continue reading Ask the team: can I do without a retention?

Concurrent delay after De Beers v Atos

It’s been interesting to follow some of the debate in the legal press and online about whether there is a new line of authority developing in England and Wales about concurrent delay under a construction or engineering contract. To simplify, concurrent delay refers to a period when two events have occurred, both of which delay the progress … Continue reading Concurrent delay after De Beers v Atos

February 2011 digest: Scottish Scheme, BSF judicial review and corporate manslaughter conviction

Henry Wadsworth Longfellow, Afternoon in February: “The day is ending, the night is descending; the marsh is frozen, the river dead. Through clouds like ashes, the red sun flashes, on village windows that glimmer red.” February is sometimes described as a bridge between January and March, a month that connects winter to spring. Some days are wet, some … Continue reading February 2011 digest: Scottish Scheme, BSF judicial review and corporate manslaughter conviction

Ask the team: the contractor has gone bust, do I need to pay his design consultants?

What happens if your design and build contractor goes bust, but hasn’t paid its professional consultants? In particular, what happens if those consultants then contact you to claim that you can’t use their designs and documents, because you don’t have a valid copyright licence to do so? This situation may be particularly painful if, before the main … Continue reading Ask the team: the contractor has gone bust, do I need to pay his design consultants?

January 2011 digest: concurrent liability in contract and tort, and economic loss

Robert Louis Stevenson, A Child’s Garden of Verses: “In winter I get up at night and dress by candle-light. In summer, quite the other way – I have to go to bed by day.” January nights are some of the longest of the year, its days some of the coldest. It’s a time of year … Continue reading January 2011 digest: concurrent liability in contract and tort, and economic loss

Financing adjudication enforcement proceedings

How a party finances litigation is usually a matter between it and its solicitor. It may simply agree to pay the costs incurred by its solicitor and the legal team, in the usual way, or it may enter into some form of conditional fee agreement (CFA) that affects the level of those fees, depending on … Continue reading Financing adjudication enforcement proceedings

Ask the team: what are the Eurocodes and do I need to change my drafting?

What are Eurocodes? The Eurocodes are a flexible, pan-European set of standards for use in structural design. They are divided into ten areas, the first two of which act as the common foundation for the detail that follows:

Another year dawns

Alfred, Lord Tennyson: “Ring out the old, ring in the new, Ring, happy bells, across the snow: The year is going, let him go; Ring out the false, ring in the true.” At the start of the new year, PLC Construction has been reflecting on events in 2010 and looking forward to 2011.

December 2010 digest: Let it snow!

In the words of “Let It Snow”: “Oh the weather outside is frightful, But the fire is so delightful, And since we’ve no place to go, Let It Snow! Let It Snow! Let It Snow!” It has been a cold and snow-filled December. “Let it snow” may have been the last thing people were thinking as large parts of … Continue reading December 2010 digest: Let it snow!

Ask the team: what is a dispute in adjudication?

Do I have a dispute under my construction contract? A dispute is the bedrock of adjudication. Without a dispute, a party has no right to start an adjudication. As section 108 of the Construction Act 1996 tells us: “A party to a construction contract has the right to refer a dispute [or difference] arising under the … Continue reading Ask the team: what is a dispute in adjudication?

July to December 2010, a half-year case review

Plato (427 BC – 347 BC), Dialogues, Phaedo: “The partisan, when he is engaged in a dispute, cares nothing about the rights of the question, but is anxious only to convince his hearers of his own assertions.” In July, we reported on the notable decisions from the first half of 2010. The second half of the year has … Continue reading July to December 2010, a half-year case review

E-mail arrangements over Christmas and new year

‘Twas the night before Christmas by Clement Clarke Moore: “Twas the night before Christmas, when all through the house. Not a creature was stirring, not even a mouse. The stockings were hung by the chimney with care, In hopes that St Nicholas soon would be there.” PLC Construction will send its last e-mail of 2010 … Continue reading E-mail arrangements over Christmas and new year

November 2010 digest: duty of care in tort and third party rights

Samuel Taylor Coleridge: “The one red leaf, the last of its clan, that dances as often as dance it can, Hanging so light, and hanging so high, on the topmost twig that looks up at the sky.” The last of the autumn leaves are falling and winter is well and truly here. It seems that … Continue reading November 2010 digest: duty of care in tort and third party rights

Ask the team: should I worry about the changes to the Construction Act?

There’s no getting away from the fact that the changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996), to be made by Part 8 of the Local Democracy, Economic Development and Construction Act 2009 (LDEDC Act 2009), are important. However, while some things will change, many things will stay the … Continue reading Ask the team: should I worry about the changes to the Construction Act?

October 2010 digest: spending cuts, quangos and health and safety

On Money, money, money, Abba sang: “I work all night, I work all day, to pay the bills I have to pay, ain’t it sad. And still there never seems to be a single penny left for me, that’s too bad.” Money was high on the agenda in October as the coalition government delivered its long-awaited spending … Continue reading October 2010 digest: spending cuts, quangos and health and safety

Ask the team: how can I ensure my contractor complies with its design and build insurance?

With the long term rise of design and build contracting, some commentators in the insurance industry also point to an increase in cases where a design and build insurer refuses cover in the event of a claim. This clearly affects the contractor, but employers need to be careful too, as the absence of insurance coverage … Continue reading Ask the team: how can I ensure my contractor complies with its design and build insurance?

Bonfire of the quangos

Francis Maude, Minister for the Cabinet Office and Paymaster General, has announced that 192 public bodies (quangos) will be abolished (including the Design Council), with others being restructured (for example the Home and Communities Agency (HCA) and the Environment Agency (EA)), and some still on hold pending further review (see below).

E-disclosure – are you ready for it?

Disclosure, discovery, whichever term you choose, the process is synonymous with time and expense in litigation. In subject areas that are document-heavy, like construction and engineering disputes, or large commercial cases, the cost of going through the disclosure process is often a significant part of a party’s overall costs.

September digest: it’s all change for the TCC and Building Regulations

As Truman Capote said: “Writing has laws of perspective, of light and shade just as painting does, or music. If you are born knowing them, fine. If not, learn them. Then rearrange the rules to suit yourself.” It was all change at the TCC this month. Not only did Akenhead J’s time as the Judge in … Continue reading September digest: it’s all change for the TCC and Building Regulations

Ask the team: why use Part 8 in adjudication?

Why would I want to use CPR Part 8 in adjudication? While I know that the Technology and Construction Court (TCC) has supported its use, doesn’t it just take extra time and cost more money?

CBI joins debate on government spending

The government spending review is only a month away and everyone is fighting to avoid cuts in their sector. This week, the CBI published its submissions to the government, but will they help the construction and engineering industries?

Health and safety issues in offshore extraction and the construction sector

The HSE recently released its provisional offshore safety statistics for 2009/10 and the figures may raise some concern in the industry. The number of fatalities has risen (after a good year in 2008/9). In addition, the combined fatal and major injury rate rose for the first time since 2001/2. The numbers don’t look good, but what … Continue reading Health and safety issues in offshore extraction and the construction sector

August 2010 digest: holidays and the summer recess

Aristotle said: “The end of labour is to gain leisure.” August is traditionally the month when people take a holiday, and yet this month it has not been at all quiet on the legal front (although the furore over the judgment in City Inn v Shepherd seems to be over). 

Ask the team: can an agreement bypass the Party Wall etc. Act 1996?

I have a client whose next-door neighbour is happy with my client’s proposed works to his property, but my client knows from past experience that the Party Wall etc. Act 1996 (PWA 1996) may affect him. Because my client and the neighbour agree what will be done, how it will be done and when it … Continue reading Ask the team: can an agreement bypass the Party Wall etc. Act 1996?

July 2010 digest: ODA, BSF and third party rights

In the words of Henry James: “Summer afternoon, summer afternoon; to me those have always been the two most beautiful words in the English language.” This time last year, all the talk was about who would win the Ashes (we did); last month the focus was on the World Cup (Spain won); and now it seems … Continue reading July 2010 digest: ODA, BSF and third party rights

Collateral warranties, a standstill agreement and a concurrent tort claim

One multi-party (and multi-action) Technology and Construction Court (TCC) claim involving Linklaters, Sir Robert McAlpine and others is under scrutiny by commentators at the moment. While it is important to remember that the latest installment, like the previous one, is still at the pre-trial (interlocutory) stage, what can we learn from How Engineering v Southern Insulation?

Ask the team: my tender has been accepted, but now I realise I got it wrong…

…what should I do? Unfortunately, if you have simply entered into a bad bargain, the law does not automatically step in to help you.  However, all may not be lost…

What’s happening with construction disputes?

Last month we asked for feedback on current trends in construction dispute resolution. We reviewed your comments and combined them with our own thoughts and observations.

January to June 2010, a half-year case review

The first half of 2010 has seen a number of important decisions affecting construction and engineering practitioners.

Yuanda judgment to be appealed?

Adjudication practitioners sat up and took notice of one judgment earlier this year: Edwards-Stuart J’s decision in Yuanda (UK) v WW Gear. (He held that a Tolent clause in the parties’ contract fettered a party’s right to refer a dispute to adjudication “at any time“, which conflicted with section 108 of the Construction Act 1996.)

June 2010 digest: emergency budget, multi-jurisdictional guide and the Scheme

Freddie Mercury from Queen: “And we have no such thing as a budget anymore. Our manager freaks when we show him the bill. We’re lavish to the bone.” This month saw the government deliver its emergency budget. If only the country’s economics were as straightforward as being a rock star once was.

Giving notice under a construction contract – difficulties for companies?

A recent Court of Appeal decision set many construction practitioners thinking about how the parties communicate and give notices to each other. In particular, when a statute or contract requires a company to give a notice or sign a document, do the execution rules of the Companies Acts always apply?

Ask the team: what building contract might I recommend to my high net worth client?

If a high net worth individual wants to carry out work to their house, or even intends to build a new house, what form of building contract might you recommend for their works?

Low carbon domestic refurbishment

We all know that we need to improve energy use in new houses and buildings, so why should we care about existing housing stock? On 10 June, the Construction Products Association (CPA) published An Introduction to Low Carbon Domestic Refurbishment, a guide that answers that question and might even provide some inspiration for the wider construction industry.

CABE proposes minimum design standard and deregulation for housing

CABE (the Commission for Arcitecture and the Built Environment) has published Simpler and Better, a report which argues for the introduction of a minimum design standard for homes, combined with better, leaner regulation of new homes through (for example) the planning and building regulation systems.

May 2010 digest: NEC Z clauses, third party rights and tigers

The Tiger by William Blake: “Tiger, tiger, burning bright In the forests of the night” May’s news was dominated by the election, the first full coalition government since the end of the Second World War and the first power-sharing deal between the Conservatives and the Liberal Democrats. We reported on the construction industry’s reaction, the government’s coalition … Continue reading May 2010 digest: NEC Z clauses, third party rights and tigers

Coalition agreement final version and Queen’s Speech 2010: construction implications

Since the initial coalition agreement was published, three key political developments have taken place. None of these developments have fundamentally altered the position for construction companies and construction lawyers, and all mean that some residual political and practical uncertainty remains.

Construction contracts and construction operations: confusion over exclusion?

Cases relating to the definition of “construction operations” under section 105 of the Construction Act 1996 often concern adjudication, and not payment. However, whether a contract is a “construction contract” for the purposes of the Construction Act 1996 affects the parties’ payment obligations as well as their right to adjudicate.

Ask the team: how do I terminate a JCT contract?

If the parties to a building contract get to the point where one (or even both) of them wants to terminate the contract then, usually, something has gone very wrong. Each individual construction or engineering contract has its own requirements for termination, so this Ask the team assumes that: The parties have agreed and signed … Continue reading Ask the team: how do I terminate a JCT contract?

Construction industry reaction to coalition government

The construction industry has been hit hard by the current recession. Beyond headlines like “Heathrow third runway scrapped”, the construction industry faces further uncertainty as it waits to see what the new coalition government’s public sector spending cuts really mean for key areas, such as housebuilding, and for major projects, such as Crossrail.

Coulson J’s “Seven golden rules of adjudication”

Yesterday evening the Society of Construction Law (SCL) hosted Coulson J’s talk, “The perfect adjudicator’s decision”, which was chaired by Paul Darling QC. Coulson J suggested that he had never seen a perfect decision and, unless Kate Winslet was sitting as an adjudicator, the perfect adjudicator does not exist. Therefore, although entitled, “The perfect adjudicator’s decision”, … Continue reading Coulson J’s “Seven golden rules of adjudication”

April 2010 digest: Tolent clauses, volcanos and Wembley (again)

“A volcano is just a mountain with hiccups.” We are unsure where this quote originates, but it was probably of little comfort to the thousands of travellers affected by April’s biggest story, the Icelandic volcanic eruption, which dominated the news and even managed to push the general election off the front pages for a few days.

Construction law and employment law collide: stopping work leads to redundancy

A construction or engineering contract, in particular a sub-contract, often allows the contractor to order the sub-contractor to stop work. This often appears as a contractual right to order the sub-contractor to suspend work immediately (or to suspend after a short notice period) following which, if work does not resume within six or twelve months, the … Continue reading Construction law and employment law collide: stopping work leads to redundancy

Ask the team: What are provisional sums?

Provisional sums are a mystery to many construction and engineering lawyers, often thought of as the domain of quantity surveyors, rather than legal advisers. In fact, a building contract’s treatment of provisional sums can have a profound impact on the overall cost and speed of a project.

The costs of litigating large and complicated construction disputes

Is the cost of litigating large and complicated construction disputes getting out of hand? One only needs to look at the litigation that the redevelopment of Wembley stadium has generated for some recent, extreme examples.

Loss of profit – escaping from a bad bargain

Be wary. It is not easy to escape from an unprofitable contract (or “bad bargain”). Unprofitable contracts The construction industry may now be leaving its own long recession behind (or it may not). Whatever your particular experiences of the recession, it may have left you with contracts that are unprofitable (or, at least, less profitable) … Continue reading Loss of profit – escaping from a bad bargain

March 2010 digest: the Budget and the Scheme for Construction contracts

Calvin Coolidge, 30th President of the USA (attributed): “Nothing is easier than spending the public money. It does not appear to belong to anybody. The temptation is overwhelming to bestow it on somebody.” March saw the Government deliver its (final?) Budget. As there was little in the Budget for the construction industry, the reaction to it was muted. … Continue reading March 2010 digest: the Budget and the Scheme for Construction contracts

Ask the team: I’ve heard there is a new crane register. What do I need to do?

“I have heard that there is a new crane register coming into force. I have a crane erected on a construction site. What do I need to do?” The tower crane register The Health and Safety Executive’s (HSE) new tower crane register comes into force on 6 April 2010. It is being introduced by the Notification of Conventional … Continue reading Ask the team: I’ve heard there is a new crane register. What do I need to do?

Shhh… it’s a secret!

At the Worshipful Company of Arbitrators’ Annual Master’s Lecture yesterday, Sir Vivian Ramsey, the judge in charge of the TCC, discussed the concept of confidentiality in dispute resolution. A copy of the speech should appear on the WCA’s website (as previous lectures have) but, in the meantime, here is a taster.

Japanese Knotweed: are its days numbered?

Following last year’s consultation, Huw Irranca-Davies MP, the Minister for the Natural and Marine Environment, Wildlife and Rural Affairs, has announced that a biological control will be introduced in the UK to try and limit the spread of Japanese Knotweed. The Minister described the problems associated with Japanese Knotweed as “massive”, costing the economy in … Continue reading Japanese Knotweed: are its days numbered?

Are the anti-blacklisting Regulations a Government whitewash?

The Government’s anti-blacklisting Regulations came into force on 2 March, but will they stop blacklisting? The problem In March 2009, the Information Commissioner’s Office (ICO) uncovered a database containing the details of 3,213 construction workers, which was used by over 40 construction companies to vet individuals for employment. The database effectively acted as a blacklist … Continue reading Are the anti-blacklisting Regulations a Government whitewash?

February 2010 digest: adjudication practice develops and PLC launches its CRC survival kit

An English proverb says: “If February give much snow, a fine Summer it doth foreshow.” Regular readers of PLC Construction’s monthly digest will have noticed that it has been dominated by bad weather and environmental issues in recent months. That hasn’t changed in February, with the continuing wintry weather and the launch of PLC Environment’s CRC Survival Kit, which provides … Continue reading February 2010 digest: adjudication practice develops and PLC launches its CRC survival kit

Ask the team: what is Pool Re and why is it relevant to construction projects?

Pool Re was (and still is) one of the most significant developments in British insurance in the last twenty years, but why is it important to the construction industry? What is Pool Re? Pool Reinsurance Company Ltd (Pool Re) is a mutual reinsurance company. It provides reinsurance on a direct basis (that is, without broker … Continue reading Ask the team: what is Pool Re and why is it relevant to construction projects?

A sea change in adjudication enforcement?

Are we witnessing a sea change in the Technology and Construction Court’s (TCC) approach to the enforcement of adjudicators’ decisions? Two recent TCC decisions suggest we may be. In both cases, the TCC took giant steps in developing adjudication enforcement practice. It is no coincidence that both cases were heard by Mr Justice Edwards-Stuart. The … Continue reading A sea change in adjudication enforcement?

January 2010 digest: more cold weather, Jackson LJ and CRC

Sara Coleridge, Pretty Lessons in Verse: “January brings the snow, Makes our feet and fingers glow.” January is described by Wikipedia as “the coldest month of the year within most of the Northern Hemisphere…”. We are sure no-one would contradict this. Snow and ice, freezing weather and failed transport systems once again dominated the news at the … Continue reading January 2010 digest: more cold weather, Jackson LJ and CRC

Existing buildings are inefficient, so should we demolish?

Question: What do Paul Morrell and Sir John Betjeman have in common? Answer: They might both like to demolish Slough town centre. The poet famously said: “Come friendly bombs and fall on Slough! It isn’t fit for humans now, There isn’t grass to graze a cow. Swarm over, Death!”

Contractual adjudication using the Scheme for Construction Contracts

If you are carrying out works that are partly “construction operations” under the Construction Act 1996, and partly not, conventional wisdom has often said that it makes sense to ensure that your dispute resolution clauses and payment terms comply with the Act. While this was accepted as good practice, it remained unclear exactly how the … Continue reading Contractual adjudication using the Scheme for Construction Contracts

Bid rigging investigation moves “down under”

In 2009, the construction press was full of stories about cover pricing and bid-rigging in the construction industry. This was because of the Office of Fair Trading’s (OFT) investigation (which had started in 2004), and which resulted in fines of £129.5 million being imposed on 103 construction companies in September 2009.

Ask the team: it’s snowing, so do I get an extension of time?

Contractors need to look carefully at extension of time and loss and expense clauses to see if snow and freezing temperatures entitle them to more time and money. Adverse weather conditions (again) Last year, in January and February 2009, parts of the UK suffered from heavy rainfall and flooding. At that time, we looked at … Continue reading Ask the team: it’s snowing, so do I get an extension of time?

Say hello to the “twenty tens”, wave goodbye to the “noughties”

As TS Eliot wrote (in 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 (and another decade) begins. PLC Construction has been reflecting on events in 2009 and looking forward … Continue reading Say hello to the “twenty tens”, wave goodbye to the “noughties”

December 2009 digest: snow, COP 15 and terrorism insurance

In the bleak midwinter: “In the bleak midwinter, frosty wind made moan, Earth stood hard as iron, water like a stone; Snow had fallen, snow on snow, snow on snow, In the bleak midwinter, long ago.” Last month it was exceptional rainfall, this month it was snow and freezing temperatures. Given the weather the country … Continue reading December 2009 digest: snow, COP 15 and terrorism insurance

E-mail arrangements over Christmas and new year

“On the first day of Christmas, my true love sent to me A partridge in a pear tree…” PLC Construction will send its last e-mail of 2009 next week, to arrive in your inbox on Thursday 24 December 2009. We are then taking a break until the new year. The first e-mail of 2010 will be … Continue reading E-mail arrangements over Christmas and new year

Ask the Team: Can you novate part of an agreement?

PLC Construction recently received an enquiry asking whether it is possible to novate part of a contract. This question is relevant to several areas of construction law. For example, if a professional consultant enters into a professional appointment under which it provides services covering three disciplines, can you novate one discipline to a third party … Continue reading Ask the Team: Can you novate part of an agreement?

TCC adjudication practice continues to develop…

Those involved in adjudication and, in particular, adjudication enforcement, will be familiar with the procedure laid out in section 9 of the TCC Guide; a procedure that developed after the Construction Act 1996 came into force in May 1998. Quite how many times this procedure has been used over the last ten years is difficult to … Continue reading TCC adjudication practice continues to develop…

November 2009 digest: rainfall, climate change and Copenhagen

In the words of Guns N’ Roses (in November Rain): “‘Cause nothin’ lasts forever Even cold November rain” or, if we want to be a bit more highbrow, in the words of Sir Walter Scott: “November’s sky is chill and drear, November’s leaf is red and sear.”

Crystallisation and severability of disputes: issues arising from Allied v Paradigm

Akenhead J’s judgment in Allied P&L Ltd v Paradigm Housing Group Ltd raises several interesting questions about adjudication enforcement. PLC Construction has discussed the case with Calum Lamont, counsel for Allied at the enforcement hearing, to identify some of these issues. Following that discussion, here are PLC Construction’s thoughts on some key points.

State your intentions…

This week, we have reported on another Court of Appeal decision on a letter of intent. (Earlier this year, the Court of Appeal gave judgment in RTS v Muller.) The case (Whittle v Hollywood) sounds very rock and roll…

Ask the Team: Does a contract administrator owe a duty of care to a contractor?

PLC Construction recently received an enquiry asking whether a contract administrator owes a contractor a common law duty of care. This question is particularly relevant in the current economic crisis. More and more contractors are faced with an insolvent employer and are asking whether they can recover their losses from third parties, such as a … Continue reading Ask the Team: Does a contract administrator owe a duty of care to a contractor?

We are one!

“Through the Looking Glass”, by Lewis Carroll: “‘I mean, what is an un-birthday present?’ ‘A present given when it isn’t your birthday, of course.’ Alice considered a little. ‘I like birthday presents best,’ she said at last.” PLC Construction is celebrating its first birthday, and what a year it has been. For construction practitioners, the … Continue reading We are one!

October 2009 digest: ’tis the month of Halloween

“The Witches’ Spell” from Macbeth, by William Shakespeare: FIRST WITCH: Round about the cauldron go; In the poison’d entrails throw: Toad that under cold stone, Days and nights has thirty-one. Sweltered venom, sleeping got, Boil thou first i’ the charmèd pot. ALL: Double, double, toil and trouble; Fire burn, and caldron bubble. October has been … Continue reading October 2009 digest: ’tis the month of Halloween

Conservative Party plans to reduce health and safety red tape

The Conservative Party plans to allow medium to large construction businesses to procure independent health and safety audits. If a firm passed an audit, it could bar the HSE from entering the audited site. Is this genius or folly?

Electronic working in the TCC, is it e-working?

The Electronic Working Pilot Scheme has been piloted at the TCC in London since July 2009. Has it been a success? PLC Construction attended an HMCS workshop to find out.

Ask the Team: Deducting LADs after a contractor goes into administration

PLC Construction recently received an enquiry about an employer’s ability to deduct liquidated and ascertained damages (LADs) for delay under a demand issued after the contractor had gone into administration. Could the employer set-off its demand for LADs under the Insolvency Rules?

CIOB plans guidance on time management

Of the three key factors that drive a project (cost, quality and time), time management is by far the least developed and understood. This was highlighted by the Chartered Institute of Building’s (CIOB) report, Managing the risk of delayed completion in the 21st century. Having identified the problem, the CIOB is trying to solve it.

Costs in adjudication: any way the wind blows?

If you successfully enforce an adjudicator’s decision in the Technology and Construction Court (TCC), you will usually recover your costs. But how much might you recover?

September 2009 digest: autumn leaves, bid-rigging and public procurement

John Keats, Ode to Autumn: “Season of mists and mellow fruitfulness Close bosom-friend of the maturing sun” September marks the end of summer and the start of autumn; and while it has been warm (and mostly dry) after our wet and cool summer, it has nevertheless brought a chill wind to the leading contractors fined … Continue reading September 2009 digest: autumn leaves, bid-rigging and public procurement

Ask the Team: What is EPCM contracting?

PLC Construction recently received an enquiry asking for information about EPCM contracting. Our thoughts below give an overview of how EPCM contracting operates and what distinguishes it from other forms of procurement, particularly EPC contracting.

UCATT publishes blacklisting report

The Union of Construction, Allied Trades and Technicians (UCATT) has published its report on blacklisting in the construction industry, Ruined lives – blacklisting in the construction industry. Unsurprisingly, the report criticises the Government and the Information Commissioner’s Office (ICO) for their handling of the scandal. It also raises several concerns about the Government’s proposed blacklisting … Continue reading UCATT publishes blacklisting report

OFT fines 103 construction companies for bid-rigging

The long-awaited results of the OFT‘s investigation into bid-rigging in the construction industry have been published.

The future of public procurement in Northern Ireland (and beyond)

Public procurement in Northern Ireland never seems to be far from the news, often for the wrong reasons. We have seen four high-profile cases in the last year:

ODA reports UK businesses benefit from work at the Olympics site

The Olympic Delivery Authority (ODA) has announced that more than 1,000 UK businesses have already benefited from the London 2012 Olympics, winning over £5 billion of contracts to prepare the infrastructure and venues for the games.

Who will be the new Chief Construction Adviser?

Speculation is growing over who will be appointed to the role of Chief Construction Adviser, a role the Government has announced it wants in place by November 2009.

August 2009 digest: the ODA, the ICO, NEC3 and cricket

As anyone who has holidayed in the UK this summer will know, we have not had the barbecue summer that the Met Office promised. July was provisionally the wettest month on record in England and Wales and it feels like August has followed suit. If only a Spanish proverb was true: “When it rains in … Continue reading August 2009 digest: the ODA, the ICO, NEC3 and cricket

Impact of Limitation Act reforms on construction industry: consultation

We understand that the Ministry of Justice is carrying out an informal pre-consultation with members of the construction industry over the Law Commission’s proposals to reform the Limitation Act 1980. It has asked for responses by 20 September 2009.

Ask the Team: What happens when a warrantor converts from a partnership to an LLP?

The question What do you do if a professional consultant (such as an architect) changes its status, for example, if it converts from a partnership to a limited liability partnership (LLP), after its formal appointment, but before it is asked to provide collateral warranties? Who do you ask to provide the warranty, the old entity … Continue reading Ask the Team: What happens when a warrantor converts from a partnership to an LLP?

TCC costs management pilot

Earlier this summer, we reported on the pilot of Jackson LJ’s “cost management” concept in Birmingham’s Technology and Construction Court (TCC) and Mercantile Court. The pilot is part of the major review of the civil litigation costs system being undertaken by Jackson LJ.

July 2009 digest: School holidays, cricket and Japanese knotweed

Alice Cooper sang “School’s out for summer“. Not only did July mark the start of the school holidays, it also marked the start of the summer vacation for the Royal Courts of Justice. Before the break, the Technology and Construction Court (TCC) had a variety of issues before it:

Ask the Team: What is the Joint Fire Code?

We received a query from a subscriber asking what the Joint Fire Code was and whether we had more information on it.

UK Climate Projections 2009

On 14 July 2009, PLC Construction attended a conference entitled “What does climate change mean for construction?”, organised by the Construction Industry Research and Information Association (CIRIA) and sponsored by Defra. At the conference a representative from UK Climate Impacts Programme (UKCIP) introduced UK Climate Projections 2009 (UKCP09), its latest climate predictions for the UK during the 21st … Continue reading UK Climate Projections 2009

Consultation on business rescue procedures

With the country in the midst of the worse economic decline for decades, insolvency is often in the headlines. The construction industry has seen more than its fair share of insolvencies, with a number of high profile companies falling victim to the recession. We have seen some big names disappear (David McLean, Mann Construction, Pettifer Construction to name but a few). … Continue reading Consultation on business rescue procedures

ODA reports early Olympic successes

In July 2008, the Olympic Delivery Authority (ODA) committed itself to achieving ten key milestones by 27 July 2009. (The Olympics will start on 27 July 2012.) According to its recent publication, the ODA has achieved all ten milestones ahead of schedule.

Defective work in construction projects

We recently attended a seminar at Pinsent Masons’ offices, presented by Sam Boyling and James Clarke. The topic was defective work; something that is all too familiar to those involved in the construction industry. Defects can range from de minimis items often included in a snagging list at practical completion (PC), to undetected problems, such as issues with … Continue reading Defective work in construction projects

June 2009 digest: Cabinet reshuffles, heatwaves and Wimbledon

June saw the JCT publish its official “guides” to the changes included in the 2009 revisions to its standard form contracts. Unlike previous JCT guides, these do not give a detailed description of the changes made by the 2009 Revisions. We’ve been looking at the JCT Standard Building Contract, 2005 edition (SBC05). To assist construction … Continue reading June 2009 digest: Cabinet reshuffles, heatwaves and Wimbledon

UK infrastructure is “vulnerable”

The Institution of Civil Engineers (ICE) has published a report, The State of the Nation: Defending Critical Infrastructure, on the security of the UK’s key infrastructure networks. The report pulls no punches, stating that “without reform, the UK is in danger of not having the infrastructure it needs to operate.”

Construction is an expensive business

The song says “When the going gets tough, the tough get going“. In the construction industry, this means “When the going gets tough, the tough get suing”. There is no doubt that things are tough at present.

Who, or why, or which, or what, is ProCure21+?

ProCure21 is the procurement method for publicly funded NHS schemes (as opposed to schemes that use private funding, such as PFI and LIFT). As we highlighted in an update last week, ProCure21 will soon be replaced by ProCure21+. So what is Procure21+ and how will it differ from the existing regime?

Ask the Team: Who is a building owner under the Party Walls etc. Act 1996?

PLC Construction has introduced a new regular feature: “Ask the Team”. This will be based on questions you have asked. We edit the questions and answers, where appropriate, to maintain anonymity. Our first Ask the Team suggests an answer to the question “who is a building owner under the Party Walls etc Act 1996?”

More protection for views of London’s landmarks?

The Greater London Authority has published the draft Revised London View Management Framework Supplementary Planning Guidance (the draft framework). In simple terms, this sets out a strategy to “preserve London’s character and built heritage” by protecting the viewing corridors of key landmarks (such as St Paul’s Cathedral) and World Heritage Sites (such as the Tower of London) through limiting the … Continue reading More protection for views of London’s landmarks?

Do night shifts cause cancer?

In March 2009 the Danish government started paying compensation to women who had developed breast cancer after long spells working nights. This followed a decision by the International Agency for Research on Cancer (IARC), an arm of the UN’s World Health Organisation, to classify night working as an activity that probably causes cancer. Should the construction and … Continue reading Do night shifts cause cancer?

May 2009 digest: the TCC, litigation costs, swine flu, JCT Revisions, LDEDC in Commons

After a lull since Christmas, the TCC has sprung into action again and enforced more adjudicators’ decisions. Of wider interest (both within and oustide the construction and engineering sector), the TCC also confirmed that a mediator could be called as a witness in a claim that a settlement agreement was signed under economic duress (albeit, … Continue reading May 2009 digest: the TCC, litigation costs, swine flu, JCT Revisions, LDEDC in Commons

JCT Revision 2 2009: more of the contract changes emerge

The JCT announced the headline changes in Revision 2 2009 to its Standard Building Contract and the Design and Build Contract on 18 May 2009. It also confirmed that it would publish revised guides to the two contracts, showing which clauses have changed from the Revision 1 June 2007 versions. As we keep our maintained resources up … Continue reading JCT Revision 2 2009: more of the contract changes emerge

Updated standard forms: what price for users?

In the last fortnight, two suites of standard forms of contract have been updated. Last week, the Association for Consultancy and Engineering (ACE) published an updated suite of professional appointments, the ACE Agreements 2009, and, on Monday, the Joint Contracts Tribunal (JCT) began publishing its 2009 revisions, a process that will last into August. Anyone … Continue reading Updated standard forms: what price for users?

Words of advice on construction claims

Claims are commonplace and all those involved in construction and engineering projects will be familiar with the disputes that can arise on a project.

Titanic prison plan hits Straw iceberg

The Government is abandoning its plan to build three “titan” prisons, each of which would have housed 2,500 inmates. The decision, announced by Justice Minister Jack Straw, is a blow to the construction industry as the prisons were expected to cost around £1.2 billion, much of which would have been spent on construction. Instead, the Government … Continue reading Titanic prison plan hits Straw iceberg

LDEDC Bill: insolvency amendments back on the table

Since the Local Democracy, Economic Development and Construction Bill 2008 (the Bill) was published last year, a number of amendments to its construction provisions have been proposed (see blog post). At the end of the committee stage in the House of Lords, the Government made it clear that it would not support any of the proposed amendments. … Continue reading LDEDC Bill: insolvency amendments back on the table

Crossrail: news of London’s future infrastructure

Crossrail is clearly important news for London. It will be Europe’s largest construction project and its effects will be widespread:

New nuclear power station sites announced

The Government has announced the locations nominated as the sites for the next generation of nuclear power stations in England and Wales

Government proposes tower crane register

The Government has announced that it is planning a tower crane register. This follows the Health and Safety Executive’s (HSE) similar announcement earlier this year (see Building).

In force: the new Practice Direction on pre action conduct

The new Practice Direction on pre-action conduct comes into force today, 6 April 2009. Construction and engineering disputes will be affected by the new Practice Direction, which will replace the current Practice Direction on Pre-action Protocols.

Wembley litigation: Court of Appeal to hear both parties’ appeal

The long-running Wembley litigation battle (Multiplex v Cleveland Bridge) is destined not to go away. As Construction News reported today, the Court of Appeal has given both parties permission to appeal the decision of Mr Justice Jackson, handed down at the end of September last year. (Jackson J had refused both parties’ applications for permission to appeal to … Continue reading Wembley litigation: Court of Appeal to hear both parties’ appeal

How to avoid disputes about timesheets and invoices

The recent case of Furmans Electrical Contractors v Elecref Ltd concerned a construction dispute over only a few thousand pounds. Although it made no headlines, this case raises an interesting question – one which you are best avoiding going to court to answer.

Blacklist adjournment debate: blacklisting the blacklisters

In the House of Commons last night, during the adjournment debate on blacklisting in the construction industry, the Government Minister for Employment Relations and Postal Affairs, Mr Pat McFadden, confirmed that the Consulting Association, run by Ian Kerr, will be prosecuted under the Data Protection Act 1998 for compiling its database of blacklisted individuals.

Construction industry turns to public sector for survival

Construction companies are increasingly looking to the public sector, as private sector work dries up. Two pieces of evidence support this view:

Construction blacklists – implications for the construction industry

The construction industry has been making the headlines again in the past week, but for the wrong reasons. An investigation by the Information Commissioner’s Office (ICO) has uncovered a database containing details on 3,213 construction workers, which was used by over 40 construction companies to vet individuals for employment.

LDEDC Bill 2008 completes committee stage as Government rejects proposed amendments

The Government has rejected proposed amendments to the Local Democracy, Economic Development and Construction Bill 2008 (LDEDC Bill 2008) as it completed its committee stage in the House of Lords (see our Legal update). The LDEDC Bill 2008 begins the report stage on 17 March 2009.

Mr Oliphant, the Toblerone and the caravan

In the New Year, the Court of Appeal handed down judgment in an obscure dispute between two homeowners and their structural engineer (Penny and Anr v Digital Structures Ltd).  While the judgment creates no new law, it highlights some practical issues relating to structural surveys.

LDEDC: the merry-go-round of amendments

The seventh list of amendments to the LDEDC Bill 2008, which amends the Construction Act 1996, were published today (the next Grand Committee hearing is tomorrow).

To boldly go: TCC judges advance adjudication jurisprudence

At the moment, we are seeing three clear trends emerge in the way the Technology and Construction Court (TCC) is dealing with adjudication business, each of which is lead by one of the TCC judges:

Get Britain Building campaign

A coalition of politicians and industry trade bodies has launched the “Get Britain Building” campaign. The campaign promotes a ten point plan:

Is the industry becoming more litigious? Current trends in construction disputes

In the first paragraph of his judgment in Able Construction (UK) Ltd v Forest Property Development Ltd [2009] EWHC 159 (TCC), Mr Justice Coulson remarked that: “This is an adjudication enforcement application under CPR Part 24 which raises a number of issues that are becoming a feature of these straightened times. From my particular vantage point, … Continue reading Is the industry becoming more litigious? Current trends in construction disputes

Olympic contracts bring glimmer of hope for SMEs

Construction News has reported that small and medium sized enterprises (SMEs) from across Britain are winning work from the Olympic Delivery Authority (ODA).

LDEDC Bill: outlandish proposals at the Lords’ committee stage

The LDEDC Bill 2008 is part way through the four days allocated for debate in Grand Committee. By Thursday morning (29 January) we should be one step closer to knowing what amendments may be made to the Construction Act 1996. Some of the changes currently suggested are entirely inappropriate for the industry.

Would extending VAT payment dates help the construction and engineering industry?

UK law currently requires most companies to pay VAT within 30 days of the end of the VAT quarter. The Financial Times recently reported a proposal to extend the payment period for smaller companies, suggesting that it could rise to 90 days. The proposal is intended to improve cash flow for small companies, who are … Continue reading Would extending VAT payment dates help the construction and engineering industry?

What building contract: competing standard forms or standardisation?

There are many competing construction and engineering standard form contracts. Some would say too many.

“There is nothing quite as wonderful as money, there is nothing quite as beautiful as cash”

In December 2008, at a “prompt payment summit”, the Business Secretary, Lord Mandelson, launched a new Code of Practice aimed at increasing the speed of payments to small companies (SMEs). This summit followed an earlier Government commitment to pay its suppliers within 10 days.

Can Facebook help find your errant plumber?

Sole traders and self-employed individuals are involved in most construction projects. They also have a crucial role in maintaining existing buildings. However, when a dispute arises, these individuals can prove elusive. A recent decision in the Australian courts may have the answer: Facebook.

Balfour Beatty v Modus Corovest

We wrote an update on last week’s judgment in Balfour Beatty Construction Northern Limited v Modus Corovest (Blackpool) Limited.

The Queen’s Speech: Construction Contracts Bill included

Mixed emotions: love it or hate it, the new Construction Contracts Bill is coming our way.

Tips on construction security

I recently attended a seminar held by Lewis Silkin LLP on construction security, focusing on bonds and parent company guarantees. Key points arising from the seminar include:

Does alliancing matter?

Alliancing matters to clients, contractors and professional consultants. It can deliver what was once thought undeliverable, but it can also exclude innovative SMEs (small and medium enterprises) from projects that they might otherwise transform.

Developments in construction law in 2008: an update from RPC

I attended a breakfast briefing given by members of RPC‘s construction team yesterday.  In the current economic climate of downturn and uncertainty, they looked at a number of “hot topics”.

CEDR launches new adjudication rules and its adjudication panel

Yesterday evening I attended the above event, otherwise known as “How can ADR be improved for the construction industry?”

Welcome

I am delighted to bring you PLC Construction. The breadth of the launch site is built on the labours of PLC Construction’s professional support team, with incredible support from within PLC and from many contributors, so a huge thank you to all. I hope you enjoy the site. Here are some of its highlights: