REUTERS | Toby Melville
December 6, 2022

Adjudication enforcement proceedings not stayed to arbitration

Back in July, I wrote about the judgment in Metropolitan Borough Council of Sefton v Allenbuild Ltd, where HHJ Hodge QC in the TCC in Manchester enforced an adjudicator’s decision and, in so doing, rejected an application under section 9 of the Arbitration Act 1996 for a stay pending referral of the dispute to arbitration. At the time, I suggested that this topic was:

“… quite rare in adjudication enforcement proceedings, but possibly not as rare as hens’ teeth!”

Well, not six months have gone by and we have another case. This time, its the judgment in Northumbrian Water Ltd v Doosan Enpure Ltd and another, and it was O’Farrell J in the TCC in London who enforced the adjudicator’s decision and rejected the defendant’s section 9 application.  Continue reading →

REUTERS | Lim Huey Teng
December 2, 2022

Contractual construction: the Tension

When the courts are faced with questions of contractual construction there remains a tension in the approach they should take. As Sir Kim Lewison said in The Interpretation of Contracts, there is a tension between:

“… a decision of the Supreme Court which had emphasised the primacy of the contractual language over background facts on the one hand, and the repeated statements that contractual interpretation is an iterative exercise which requires consideration of the commercial consequences of rival interpretations”.

I will refer to this as “the Tension”.

This post serves to highlight the existence of the Tension in the court’s approach to contractual construction in light of the recent case of Solutions 4 North Tyneside Ltd v Galliford Try Building 2014 Ltd. Continue reading →

REUTERS | Gilles Adt
November 30, 2022

Retentions: the latest developments

On 10 November, NEC and the Construction Leadership Council (CLC) published guidance on how to reduce the use of retentions in NEC contracts. It recognises what they refer to as the range of views across the sector about the practice of retentions and the government’s 2018 consultation.

As the Guidance notes, NEC provides an optional clause, Option X16, to deal with retentions. It is not a core clause and this is because NEC considers that if an NEC contract is administered properly with the parties being guided by mutual trust, co-operation and collaboration, there should be no need for a retention: Continue reading →

REUTERS | Lim Huey Teng
November 23, 2022

The suitability of adjudication for multiparty disputes

Earlier this year I acted as adjudicator in four related adjudications that ran simultaneously, and I thought it would be worthwhile sharing my experience as I think there are some interesting points for parties and their representatives who might be considering using adjudication for multiparty disputes.

Before any of you shout “confidentiality!”, to be absolutely clear I am only going to discuss the process, and have changed the facts so that nothing in this blog will reveal details of the factual disputes, parties or the substantive cases advanced. Continue reading →

REUTERS | Jason Lee
November 16, 2022

Building Safety Act 2022: changing the rules on the landlord and tenant relationship

The Building Safety Act 2022 (BSA 2022) creates a whole new world of building safety regulation and litigation. A key legislative objective was to regulate and direct responsibility for the cost of works to remedy building safety issues, so that the risk of such costs could no longer be the subject of agreement between landlord and tenant, but would (in defined circumstances) be apportioned in advance, by law, to the landlord.

To support that statutory reallocation of risk, the BSA 2022 created a new procedural framework for the paperwork needed to identify which landlords must carry the remedial costs and which tenants benefit from the new rules. In this blog, I’ll focus on the new landlord’s certificate, setting out financial information about the landlord and its corporate group, which must be sent to all long leaseholders. The relevant provisions of the BSA 2022 came into force on 28 June 2022, and the related Regulations have been in force since 20 July 2022. Continue reading →

REUTERS |
November 14, 2022

Episode 16 of The Construction Briefing

In Episode 16 of The Construction Briefing, Michelle Rousell and Yassir Mahmood from Practical Law Construction consider three judgments dealing with termination:

  • Manor Co-Living Ltd v RY Construction Ltd [2022] EWHC 2715 (TCC).
  • Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC).
  • Optimares SpA v Qatar Airways Group QCSC [2022] EWHC 2461 (Comm).

They then move on to various building safety issues before ending with a mignardise of the new TCC Guide and an adjudication survey.

The Construction Briefing is an alternative way of learning about key developments in construction law, with our editorial team discussing some of the wider issues those developments raise.

You can subscribe wherever you get your podcasts (like Apple Podcasts, Google Podcasts and Spotify), enabling you to download and listen to all episodes on the go on your phone. Alternatively, you can use our audio and video RSS feed to access the latest edition as soon as it is published.

REUTERS | Jacky Naegelen
November 11, 2022

When is it appropriate to use Part 8 in adjudication enforcement?

The case of Breakshore Ltd v Red Key Concepts Ltd, as heard in the TCC earlier this year, reconfirms the court’s position in respect of when it is appropriate to use Part 8 claims to resist adjudication enforcement hearings. Continue reading →

REUTERS | Athit Perawongmetha
November 7, 2022

Kings College survey report gives adjudication a (mainly) clean bill of health

Last week I had the pleasure of travelling to one of my favourite cities, Edinburgh, to help launch the report, 2022 Construction Adjudication in the United Kingdom: Tracing trends and guiding reform at the Adjudication Society’s annual conference.

The report has been published by King’s College London (KCL) and the Adjudication Society, and is the product of a considerable amount of hard work by Professor Renato Nazzini and Aleksander Kalisz of KCL. It can be downloaded from the Adjudication Society website, and I would urge you to read it because what follows is just a taster to whet the appetite.

The report analyses two empirical surveys covering the period May 2020 to April 2022:

  • A questionnaire addressed to adjudicator nominating bodies (ANBs), to which ten ANBs replied.
  • A questionnaire addressed to individuals involved with adjudication, to which 257 individuals replied (of which 44 act solely or predominantly as adjudicator).

Continue reading →

REUTERS |
November 2, 2022

RICS Sustainability Report 2022: some green shoots?

In recent years there has been recognition within the UK construction industry of the importance of the reduction of carbon emissions.

Major standard forms have responded to market demand and made provision for carbon reduction provisions, for example, JCT’s sustainability provisions, NEC’s Option X29 and FIDIC’s Climate Change Charter. In addition, organisations such as The Chancery Lane Project, BREEAM and NABERS, to name but a few, have set up sustainability certification systems and much guidance has been published on how the elusive net zero carbon targets can be achieved (for example, see the March 2022 King’s College report, “Procuring Net Zero Construction”, based on research led by Professor David Mosey, Darya Bahram, Dr Roxana Vornicu and Dr Paolo Ettore Giana and part funded by the Society of Construction Law.  The point being: the carbon reduction tools are there if parties wish to use them.

However, while the recognition and tools may be there, the question is whether the tools are being widely used? Continue reading →

REUTERS | Siphiwe Sibeko
November 1, 2022

Two-stage procurement: some key considerations for PCSAs

In our previous blog post, we introduced two-stage procurement and two key options for documenting it (a pre-construction services agreement (PCSA) followed by a separate main works contract and a Combined PCSA/Main Contract) noting that the differences were generally presentational or mechanical. For the purposes of this post, we will refer only to the PCSA and main contract option, but please note that the same principles apply to the Combined PCSA/Main Contract.

By way of reminder, the PCSA governs the employment of the contractor during the pre-construction phase, setting out the contractor’s pre-construction services with the ultimate purpose of maximising early contractor involvement (ECI). Generally, it is more akin to a professional consultant’s appointment than a building contract and it is usually based on bespoke terms (particularly in the case of major building and refurbishment projects) despite the availability of industry standard forms of contract such as the JCT Pre-Construction Services Agreement (General Contractor) 2016.

In this post we explore some of the unique and commonly negotiated aspects of the PCSA and different ways of dealing with them.  Continue reading →