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In a previous blog, I explored one aspect of the statutory reallocation of risk for the costs of works to remedy building safety issues in the Building Safety Act 2022 (BSA 2022). The focus of that blog was the new landlord’s certificate, designed as a tool for the landlord to communicate with leaseholders as to whether it is “responsible” for defects, or whether it meets the “contribution condition” in the BSA 2022. In this blog, I will focus on the second element of this new framework, the “qualifying lease certificate” or “leaseholder certificate”. Continue reading

REUTERS | Arnd Wiegmann

Hello to 2023

Happy new year everyone.

Once again I am reflecting on what I’d like to see and, looking at my 2022 list, I think I could probably include all of them again apart from three:

  • Clarity regarding starting a true value adjudication when you haven’t satisfied a smash and grab obligation (because that one has been sorted out by O’Farrell J in Bexheat Ltd v Essex Services Group Ltd and Roger Ter Haar QC in AM Construction Ltd v The Darul Amaan Trust).
  • A return to normality. Well, just when we thought we were beginning to move past Brexit and the COVID pandemic, Russia invaded Ukraine and turned the world upside down again. I’m not sure I know what “normal” is anymore, so how can you wish for it??
  • West Ham qualifying for Europe again (and more on this later).

However, as I also predict some of my 2022 wish list will be realised in 2023, I’m not going to repeat them. Continue reading

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Are you a construction practitioner wondering what might happen in 2023? If so, then wonder no more. Instead, listen to episode 18 of The Construction Briefing, in which Michelle Rousell and Yassir Mahmood of Practical Law Construction discuss what they think the big issues for 2023 are. They involve collateral warranties and building safety, both in the courts and through more legislative developments.

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 | Regis Duvignau

The recent judgment of the TCC in St James’s Oncology SPC Ltd (Project Co) v Lendlease Construction (Europe) Ltd and another provides a fascinating commentary on the importance of drafting a building contract that is tailored to deliver the needs of the employer and the end-user.  Continue reading

REUTERS | Russell Cheyne

In Thomas Barnes & Sons plc v Blackburn with Darwen Borough Council, the TCC had to consider whether there was a concurrent delay and if so how did that affect the parties’ rights under the contract. The delay to the works in this case entitled the employer to terminate the contract and engage a third party to complete the works. Continue reading

REUTERS | Toby Melville

I think all of the attendees of the FIDIC 2022 International Users’ Conference in London in November 2022 were delighted to be able to congregate in person, after two successive years of an on-line conference due to general pandemic restrictions. I know I was – not least because it meant I didn’t have to contend with any “you’re on mute” moments during my presentation on industry feedback and early use of FIDIC Green Book 2021.

It is six years since FIDIC unveiled the pre-release of the 2017 Yellow Book, and in this conference it felt like we’ve moved away from the training and explanations of how the 2017 suite works as compared to the well-regarded 1999 suite of contracts. Instead, this conference focused on the use of the contracts: how both the 1999 and 2017 suites have withstood the (many) tests that COVID, the war in Ukraine and global inflation have thrown up and the challenges these raise for projects. In addition, this conference launched the 2022 reprint of the 2017 Red, Yellow and Silver Books, which have all been updated and now include some (not insignificant) amendments to the original 2017 versions. Another launch at this conference was the enormous FIDIC Contracts Guide 2022. Continue reading

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In episode 17, Michelle Rousell and Yassir Mahmood from Practical Law Construction consider a number of topics:

  • The interaction between adjudication enforcement and section 9 of the Arbitration Act 1996 in Northumbrian Water Ltd v Doosan Enpure Ltd and another [2022] EWHC 2881 (TCC).
  • Confusion over CE marks.
  • The private sector construction playbook.
  • More building safety developments, including a building safety levy consultation, more SIs and Practical Law’s updated resources to reflect proposed changes to building control and building regulations.

The podcast ends with a cautionary tale about using social media.

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 | Toby Melville

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

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

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