TS Eliot, Four Quartets:
“Time present and time past, are both perhaps present in time future, and time future contained in time past.”
January’s news is usually dominated by looking forward pieces, setting out what we expect to happen in the year ahead. This year was no exception and here is what we expect to happen in construction in 2015. With a general election on 7 May 2015 and the possibility of a change in government, it is impossible to anticipate what other policy and legislative changes there may be.
The Construction (Design and Management) Regulations 2015 (CDM 2015) were one change that we were sure about: they are one of the key pieces of legislation for this year.
Coming into force in April, the regulations were laid before Parliament this month. Given that CDM is an essential part of the health and safety legislation affecting all construction and engineering projects and property development in Great Britain (and there is no exclusion for small or domestic projects), these new regulations are essential reading for everyone involved in or advising on construction, development or redevelopment work.
To help you prepare, we have published:
- Notes explaining what the CDM 2015 are and their effect on property transactions.
- Standard clauses updating the JCT’s references in the DB11, IC11, ICD11 and SBC11 from CDM 2007 to CDM 2015.
- A checklist summarising the general safety requirements for all construction sites.
More materials will follow, including an FAQs document, but if you have specific requests or queries, do let us know.
Elsewhere, the start of the Hilary court term saw a plethora of case law, including a number of interesting adjudication judgments where the court considered that:
- A party could cherry-pick from a larger dispute the claim it referred to adjudication, and it should “be encouraged” to do so.
- A party could not refer a dispute to adjudication over a year after the final certificate had been issued.
- A party was not entitled to recover its costs of the adjudication enforcement process on an indemnity basis, and was entitled to less than 50% on the standard basis.
- An adjudicator’s decision should be enforced, even though he overlooked a key document.
Elsewhere, the courts considered:
- The effect of a novation deed with a different jurisdiction clause to the agreement it was seeking to novate.
- Liability for the adjoining owner’s costs of obtaining an injuction preventing a building owner from breaching a party wall award.
- Their discretion in relation to granting damages in a public procurement dispute.
- Whether a claim form could be served on a Luxembourg single purpose vehicle at its property development site in London.
- If a later jurisdiction clause in a settlement agreement should supersede an earlier one in a consultancy agreement.
On the opinion front, Michael Sergeant started a new bi-monthly series on variations, Matt Molloy and Jonathan Cope continued their commentaries on adjudication cases, with Matt looking at an adjudicator’s entitlement to payment and Jon considering the meaning of “subject to contract” and construction contracts and construction operations, Iain Suttie discussed funders taking assignments of construction documents and Jed Savager looked at using NEC contracts in the Gulf.
In other news, we told you our Professional Appointment is available in FastDraft, we published a Certificate confirming works completed and request for payment, we told you that the TCC’s e-disclosure protocol and guidelines were updated (which Sara Paradisi discussed) and the DCLG had published revised guidance on the Party Wall etc. Act 1996 (PWA 1996), we also published a public procurement 2014-2015 review and December’s monthly case digest and reminded you that the Recast Brussels Regulation came into force.
Welcome to 2015.