REUTERS | Jorge Silva

Would I lie to you?

REUTERS | Jorge Silva

Would I lie to you?

This week I’m looking at a case from the Chancery Division of all places, Instrument Product Development Ltd v WD Engineering Solutions Ltd.

Why, I hear you ask? Well, it caught my eye because the judgment starts by talking about a noted 1981 study, Role of schemeta in memory for places (was it just me that had to Google the meaning of “schemata”?) by psychologists William Brewer and James Treyens, and went on:

“The study demonstrates an aspect of the fallibility of memory. We do not store memories as images, like a photo album, to be revisited in detail at a later date. We recreate the image every time we recall it, combining the details of what we do recall with our expectations of what we should recall. The process is automatic, and done without conscious realisation that it is taking place.

That issue is at the heart of this case. In the Brewer and Treyens study, different witnesses had different recollections of the same room that they had seen only seconds before. In this case, two witnesses have critically different recollections of the same telephone conversation held in March 2017 to which they were the only parties.”

It’s certainly not the first time that the courts have considered the reliability (or otherwise) of the memories of witnesses, and we’ve also blogged on the topic before. However, the case provides a useful summary of the relevant principles, and the opportunity to consider those in the context of construction adjudication.  Continue reading

REUTERS | Peter Cziborra

Every so often the TCC produces a judgment that serves as a cautionary tale of how domestic building projects can go wrong and how the resultant litigation can be often be a:

“… financial disaster for one of the parties and, even if not, likely an expensive and ultimately unrewarding result for both.”

Those who have advised on and acted in such claims will be familiar with trying to manage the particular conflicting factors. On the one hand, the (understandable) emotional investment of the parties when dealing with their homes (for the homeowner) or small business/livelihood (for the contractor), makes settlement difficult. On the other hand, the likely cost bill and risk makes proceeding to trial normally best avoided.

Is there an alternative for these claims? Continue reading

REUTERS | Thomas Peter

Two-stage procurement

In a recent survey undertaken as part of the RIBA Construction Contracts and Law Report 2022, it was reported that over a third (37%) of respondents had used two-stage procurement over the last 12 months. We are similarly seeing two-stage procurement being used more and more in the construction industry, particularly for major building projects. In fact, the majority of recent development projects we have advised on in the UK were procured on a two-stage basis.  Continue reading

REUTERS | Eric Vidal

Novation and some alternatives

A common scenario we are asked to advise on is this: a client acquires a building where several consultants have been engaged to carry out services but the building is sold before the services are completed. The client then wants the same consultants to continue to carry out those same services.

Normally when a client acquires a site in this way provision will be made for the appointments to be novated to the new client. But what if those appointments don’t make provision for novation? This blog takes a look at some options. Continue reading

REUTERS |

It’s that time of the month again and we have published episode 14 of our podcast, The Construction Briefing, featuring Michelle Rousell and Yassir Mahmood from the Practical Law Construction editorial team.

If you are interested in listening to their discussion on all things construction (building safety, adjudication enforcement, climate change, building contract surveys and more) before turning to other important issues of the day, like Birkin handbags and mobile phones, then tune in. You may even chuckle at the references to Glanville Williams’ Learning the law!

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 PodcastsGoogle 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 | Darren Staples

For many property practitioners, whose work comes within the orbit of the Party Wall etc. Act 1996 (PWA 1996), the High Court’s decision in Power and another v Shah earlier this year only confirmed what they already believed: if a building owner has not served a party wall notice before embarking on their works, an adjoining owner cannot invoke the dispute resolution process under section 10 of the PWA 1996 to seek redress and compensation.

But what does that mean in practical terms for the adjoining owner, and is either party better off as a result? Continue reading

REUTERS | Wolfgang Rattay

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

REUTERS | Rodrigo Garrido

Have you had chance to read RIBA’s Construction Contracts and Law Report 2022, which was published at the end of July? If not, I’d recommend taking a peek. It contains some interesting stuff, a snapshot of the state of our industry as we emerged from a post-Brexit, post-COVID world. It also has a great cover (I’ve always been rather fond of Selfridges’ “bubble wrap” flagship store in Birmingham).

The survey was completed during the early months of 2022 by over 950 respondents, looking back over 2021. Those respondents were drawn from clients, contractors and professionals. Not only does the survey look at the most frequently used procurement methods, it looks at the types of tendering and most common pricing mechanisms, which contracts and professional appointments people are opting for, and whether they are collaborating (and if not, why not). It also covers what it describes as legal issues, such as when the contract is signed, what issues have been challenging and what factors have slowed down progress on a project. There is also a section on disputes, covering the main causes and the main ways parties resolve those disputes. Continue reading

REUTERS | Russell Cheyne

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

REUTERS | Hani Amara

I appreciate that some of you might be reading this blog on your summer holidays, so you may well have far better things to be doing with your time (ordering another piña colada perhaps?). I will therefore keep the blog short – what might be termed a “blogette”.

As one would expect over the summer break, there haven’t been many reported TCC cases recently and so the case I want to discuss today is from June, namely ML Hart Builders Ltd (in liquidation) v Swiss Cottage Properties Ltd, which is a judgment of Mr Roger Ter Haar QC sitting as a deputy High Court judge. Continue reading