REUTERS | Leonhard Foeger
November 30, 2015

The new stomping ground: validity of payment applications

Since the consequences of failing to serve a valid and timely payment notice or pay less notice can be severe (see ISG Construction Ltd v Seevic College), it perhaps should come as no surprise that in recent cases, there has been increasing attention on the validity of the application for payment because, without this, there can be no “notified sum” due to the contractor and, therefore, no requirement to serve a payment or pay less notice.

Three recent TCC decisions show that the court requires applications for payment to be clear and unambiguous. A requirement which may, in the future, be more strictly applied to employer’s notices. Continue reading →

REUTERS | iStockphoto
November 30, 2015

Painshare and gainshare provisions in alliancing contracts: the benefits of pulling together

This is the second of a series of quarterly blog posts on the subject of alliance contracting and looks at the painshare and gainshare provisions that are key to a number of alliancing contracts. It examines the payment principles under an alliance contract, looking at the various factors that must be taken into account in agreeing these, such as the respective positions of each party, how these can be aligned and how service providers can be sufficiently incentivised. Continue reading →

REUTERS | Alkis Konstantinidis
November 26, 2015

Practical Law breakfast briefing on offshore contracts

Earlier this week I participated in Practical Law’s breakfast roundtable, Key clauses in offshore construction. The roundtable was led by Lucy Garrett and Calum Lamont, barristers at Keating Chambers.

As I said when I wrote about the breakfast roundtable on mediation, while Chatham House rules do not permit me to reveal all that was said, what I can tell you is how enjoyable the session was. Continue reading →

REUTERS |
November 24, 2015

TCC considers the impact that paying an adjudicator’s fees has on jurisdictional challenges

Fraser J is the latest High Court judge appointed to the TCC. His judgment in Science and Technology Facilities Council v MW High Tech Projects UK Ltd was one of the first that he handed down and the first one that I have written about.

It is good to see a fresh face in the TCC. With the retirement of both Ramsey J and Akenhead J, he is a much needed addition to the judgely fold. While some solicitors will be disappointed to have seen him move up to the bench (because they have lost an outstanding advocate), no doubt he’ll be an asset to it.  Continue reading →

REUTERS | Larry Downing
November 18, 2015

Consumer Rights Act 2015: mostly plain sailing but watch out for Feldarol

The Consumer Rights Act 2015 (CRA) is now in force. This is a significant piece of legislation for consumers and retailers alike, but how will it impact on construction contracts? Traders involved with domestic work for individuals will need to carefully consider the new rules as they may not be limited to small scale domestic projects. Continue reading →

REUTERS | Dinuka Liyanawatte
November 17, 2015

Bogged down in paperwork over steelwork exceptions under section 105(2)

The meaning of construction operations (in section 105(1)) and the exceptions (under section 105(2)) are one of the more difficult areas of the Construction Act 1996 to get to grips with. We may know that they are the result of lobbying back in the 1990’s, but I’ve never really understood the rationale for them and it doesn’t make it any easier for those of us at the coal face of implementing the Act.

The latest power station steelwork to be the subject of argument under 105(2) came before Stuart-Smith J earlier this year in Severfield v Duro. Continue reading →

REUTERS | Tobias Schwarz
November 12, 2015

PPPs in the Middle East: the new way forward?

Given the current climate created by declining oil prices, more pressure is being placed on government budgets in the Middle East. This month a new PPP law, specifically drafted to regulate partnerships between the public and private sectors in the delivery of projects, is due to come into force in Dubai. Could this be the start of the PPP as a viable project delivery model for costly government projects in the Middle East? Continue reading →

REUTERS | Reuters
November 11, 2015

Deemed variations under a construction contract

An employer must be allowed to decide what changes are made to the contract scope and therefore a contract will stipulate that variations are to be expressly instructed. Equally, unexpected difficulties in building the defined works may arise, which means that the scope has to be altered simply in order to complete the project. If the contractor cannot get formal approval for such “necessary” changes then the danger arises that it will have to proceed “at risk”. In other words, the employer may refuse to give a formal instruction, which is the condition precedent to payment under the contract.

One way of avoiding this problem is to provide that when certain specified events occur that necessitate a change to the scope, a variation is deemed to have been automatically triggered, without the need for the employer to give a formal instruction. Continue reading →

REUTERS |
November 10, 2015

Out of chaos arises order: Supreme Court confirms the rule against penalties in El Makdessi and ParkingEye appeals

The Supreme Court has handed down judgment in the cases of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis. It was not just the construction sector that waited patiently and speculated cautiously as to what the court would do with the rule against penalties. Would it confirm the current rule, abolish it, extend it, restrict its scope, or change the formulation? The prospects of obtaining a simple clear answer from the court were not promising: two cases with very different factual circumstances were heard together, there were seven judges on the bench, and the case was complicated by recent changes to the law in Australia and the Consumers’ Association “intervening” in the court proceedings. Continue reading →