REUTERS | Thomas Peter
December 11, 2019

The Construction Act and modular construction projects

Since my colleague Eveline Strecker last blogged about modular construction, it has continued to develop in popularity. The more we see of modular, the more it becomes clear that it is a very different beast to “traditional” construction projects, demanding an evolution in procurement routes and contract content.

The problems with shoehorning a modular project into the “traditional” contract mould were aptly demonstrated by the recent case of Bennett (Construction) Ltd v CIMC MBS Ltd (formerly Verbus Systems Ltd). Fellow blogger, Jonathan Cope, wrote an excellent blog looking at this case in detail. In this blog I want to focus on what this case tells us about the new approach that modular demands.    Continue reading →

REUTERS | Siphiwe Sibeko
December 10, 2019

Taxation of personal service companies and the construction sector: what is changing and who will be affected?

2020 is looking to be a year in which the tax burden of companies operating in the UK construction sector is likely to increase. This is due, first, to the delayed implementation of the VAT reverse charge (now 1 October 2020) and secondly, to major changes in the UK tax treatment of off-payroll workers. In this blog we discuss the implications of the changes to the off-payroll working rules (commonly known as “IR35”) and the steps companies affected by these changes can take. Continue reading →

REUTERS | REUTERS/ Amir Cohen
December 3, 2019

Can international construction arbitration adapt to be more affordable for lower value disputes?

Last week I headed to Dublin to attend the SCL’s annual lunch where Marion Smith QC was speaking. Just by coincidence, on my flight over there, I was reading the latest International Arbitration Survey: Driving Efficiency in International Construction Disputes, produced by the School of International Arbitration at Queen Mary, University of London (QMUL) (where Marion is a visiting senior lecturer) and Pinsent Masons.

After Brexit, it is fair to say that even Dublin will be more “international” than many of us have become accustomed to, but I digress. Back to the construction arbitration survey. Continue reading →

REUTERS | Mark Blinch
November 27, 2019

The Ontario Construction Act: building on the UK prompt payment and adjudication regime

This summer I had the pleasure of traveling to Toronto and meeting Canadian construction lawyers to discuss the introduction of a prompt payment and adjudication regime in Ontario on 1 October 2019.

As Matt Malloy outlined in his blog from 2017, the provisions of the Ontario Construction Act take inspiration from the UK. However, while for the most part, prompt payment and adjudication in Ontario will be familiar to UK practitioners, there are a few subtle, but interesting, differences that take account of, and arguably improve on, the UK system. Continue reading →

REUTERS | Alexandre Meneghini
November 26, 2019

Contract administration and notice provisions: mere procedure or condition precedent

Recent decisions considering time bars and notification provisions have generated considerable commentary and discussion over the last few months. One of these is Boskalis Offshore Marine Contractive BV v Atlantic Marine and Aviation LLP (the “Atlantic Tonjer”) which concerned notification provisions in a payment clause and the timely challenge of disputed invoices before they were due for payment. Continue reading →

REUTERS | Denis Balibouse
November 19, 2019

“All for one and one for all” when it comes to severing an adjudicator’s decision

A few weeks ago, I looked at Lord Doherty’s judgment in Dickie & Moore Ltd v McLeish, where I focused on the mentoring – pupil adjudicator points, and left the crystallisation of the dispute points to others.

This week, I’m looking again at Lord Doherty’s judgment in Dickie & Moore Ltd v McLeish, only this time it is his second opinion that I am interested in, which focused on severing the adjudicator’s decision.

And if you are wondering why I’m quoting from Alexander Dumas’ Three Musketeers, then read on… Continue reading →

REUTERS | Antonio Parrinello
November 18, 2019

Res judicata and common interest privilege in multi-party litigation

The complexity of modern construction projects often means that a raft of specialist sub-contractors, managers, administrators and certifiers are engaged, each bringing their own expertise to bear on the works.

However, when things go awry, the result can be a similarly complex and fragmentary multi-party dispute. Several such disputes have found their way to the TCC in recent years – for example, the litigation between Amey LG Ltd, Amey Birmingham Highways Ltd and Birmingham City Council, which Fraser J characterised (at paragraph 3) as “tortuous”.

In circumstances where the same defendant is being sued by a number of different claimants in respect of the same or related matters, but in separate sets of proceedings, the following two questions commonly arise:

  • To what extent is that defendant bound by determinations, both factual and legal, made in other proceedings against different claimants?
  • Will communications with the defendant(s) in those other proceedings be privileged?

Continue reading →

REUTERS | Paulo Whitaker
November 13, 2019

New Balance fails to equalise in sponsorship dispute

In a step change from the days of Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (trading as Medirest) in which the Court of Appeal rejected the notion of a general doctrine of good faith, many construction contracts now include an express requirement to act in “good faith”.

This trend is not confined to long term PPP agreements and alliancing arrangements. It is also seen in standard form contracts, such as the “mutual trust and co-operation” wording found in the NEC ECC contracts and (where selected) the supplemental collaborative wording found in the JCT:

“…the parties shall work with each other and with other project team members in a collaborative and co-operative manner, in good faith and in a spirit of trust and respect…”.

Commercial practitioners will also be aware of the recent judicial focus on relational contracts, into which contracts a duty of good faith may be implied. Last year the Court of Appeal noted that a PFI contract may be classified as a relational contract in Amey Birmingham Highways Ltd v Birmingham City Council. Continue reading →

REUTERS | Hannah McKay
November 13, 2019

Sharing the pain: considerations for joint venture participants

Both contractors and developers often enter into joint ventures to carry out a specific project. It enables parties to bid on larger projects, pool their resources, including specialised knowledge, and spread risk across the participants. The recent decision in Doosan Enpure Ltd v Interserve Construction Ltd serves as a reminder to participants in construction joint ventures of the potential pitfalls of intra-JV disputes. Continue reading →