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October 2017 digest: Construction Act review and B&PCs

Francis Bacon, The Essays:

“Read not to contradict and confute; nor to believe and take for granted; nor to find talk and discourse; but to weigh and consider. Some books are to be tasted, others to be swallowed, and some few to be chewed and digested: that is, some books are to be read only in parts, others to be read, but not curiously, and some few to be read wholly, and with diligence and attention.”

October has been a busy month, with lots of interesting developments, not least a consultation to review the Construction Act 1996 and one to review the use of retentions in the construction industry. We’re not sure if anyone else remembered the government’s promise to review the effectiveness of the changes introduced in October 2011 after five years (and it has taken them six), but it will be interesting to see the results. You have until 19 January 2018 to respond, just a few months before the Act celebrates its 20th “in force” birthday.

Adjudication is one thing the Construction Act review is interested in. It is perhaps no surprise that it is asking about things like the frequency of disputes referred, the costs involved and whether the adjudicator’s decision needed to be enforced. This month, we’ve reported on several adjudication cases. Three concerned enforcement (Rossair v Primus Build, Bernhards v Astrosoccer4u and Edinburgh Schools v Galliford Try), one involved injunctive relief (Jacobs v Skansa, which Jonathan Cope looked at), one was about an adjudicator’s fees (Vinden v Orca, which Matt Molloy considered), and one was not adjudication-related, where the court clarified when Part 8 should not be used for adjudication business. One of these was a Scottish judgment, but it demonstrates that getting paid is still an issue for many (something this BEIS guidance seeks to address).

On the subject of money, the Construction Act review is also looking at various payment issues (such as whether the new rules are clear or not), the Court of Session considered the meaning of “the basis of” in a pay less notice (which Matt Molloy discussed), and Jonathan Cope looked at Jonjohnson v Eagle, which was all about default payment notices.

Other issues in the courts included concurrent delay and the prevention principle (which Melissa Moriarty looked at), an architect’s negligence in ignoring its client’s budget (and Helena White discussed some of the contributory negligence points arising), appealing an arbitration award, the extent of knowledge for bribery and the insolvency exclusion in a professional indemnity insurance policy.

This month also saw the launch of the Business and Property Courts (B&PCs). An updated advisory note for the B&PCs was published, along with a report on using ADR. We also published our quarterly case review.

A variety of other topics were in the news: a review of construction quality, guidance on transparency in the supply chain and on slavery and human trafficking statements (and calls for tougher rules), the Green Deal, the Nuclear Safeguards Bill, an interim National Infrastructure Assessment and more guidance following the Grenfell Tower fire. The JCT also published its Tendering Practice Note 2017. On the public procurement front, we saw an EC initiative to encourage efficiency, EC guidance on e-invoicing and the TCC considered preliminary applications in a procurement dispute, which Emma Healiss discussed.

There was plenty of comment this month, with Edward Davies discussing extensions of time following Carillion v Emcor, Matt Molloy providing more examples of “bad” experts’ behaviour, Kimberly Roberts discussing injunctive relief to allow a party access to a building information model (BIM), Ben Mellors setting out some practical advice when amending FIDIC contracts and Yassir Mahmood explaining the value of obiter in judgments.

And finally, Lord Henley has been appointed as the new construction minister.

Practical Law Monthly digest

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