Practical Law

There is no doubt that technology has been and will continue to transform construction. Technology is a wide term, but it is enough to mention concepts such as BIM and Digital Twins or look at the emphasis on modern methods of construction (MMC) in the Construction Playbook to get a feel for where construction is heading. This is coupled by a growing start up sector, which focuses on better materials (for example, sustainable concrete), better methods such as modular construction, and better project and contract management that rely on project software systems.

This is good news and technology will play a key role in delivering the net zero agenda. But cutting edge technology is procured on different terms from those typically used in the construction industry. This is to be expected, as the risks, and risk allocation, are quite different. However, it does raise some challenges for traditional construction contracting models.

With this in mind, this blog takes a look at what the construction industry may be able to learn from the approach of contracts for the procurement of technology (commonly termed “tech contracts”). It showcases a few recurrent themes we see in the tech contracts we negotiate for our clients, where these may be different from the issues you commonly find when procuring the more traditional elements of a construction project. This includes, for example, data protection, cyber threats, confidentiality, access rights, licence scope, maintenance, and software development, all of which may need to be dealt with in the construction contracts. Continue reading →

At the end of last month, Tom Coulson and Amy Armitage discussed the decision of Martlet Homes Ltd v Mulalley & Co Ltd, the first decision from the TCC on fire safety defects following the Grenfell Tower tragedy. This decision is highly significant for the construction industry, given the number of similar cases which are either progressing through the courts or at the pre-action stage. Although the judge emphasised the fact-specific nature of the dispute, this decision provided some insight on the court’s likely approach to some of the significant issues that affect cladding disputes.

This blog considers some of the key takeaways from that decision in further detail. Continue reading →

Getting the notice right is important for all construction contracts and NEC is no exception. Failing to issue a notice as required under the contract can have serious consequences and in NEC this is often an issue that arises in relation to the obligation to notify compensation events within an eight week period (clause 61.3 of NEC4 ECC). Another key issue arises in respect of the obligation to issue a notice of dissatisfaction within 28 days of an adjudicator’s decision, as a failure to do so will mean that such decision becomes final and binding, and cannot be challenged by referring it to the tribunal (clause W2.4(1) of NEC4 ECC).

Three recent decisions have considered notices of dissatisfaction under NEC, highlighting the importance of getting it right. Continue reading →

Rights and wrongs aside, for almost a decade since the Parkwood decision, it has been clear that in certain circumstances a collateral warranty may be deemed by a court to be a “construction contract” for the purposes of the Construction Act 1996. This means that the parties will have the right to adjudicate at any time under a collateral warranty. As the obligations in a collateral warranty usually only go one way, this means that the beneficiary can adjudicate against the contractor or sub-contractor that provided the warranty. Continue reading →