On 29 April 2021, the government published a consultation on what is to be called the Residential Property Developer Tax (or RPDT). This sets out proposals for the design of a new tax to be charged on the largest residential property developers.

The plan is for the tax to be introduced from April 2022 (through inclusion in the 2021 Autumn Finance Bill) and to raise at least £2 billion. Such funds will contribute to the cost of cladding remediation work.

Plans for this tax were first mooted in February as part of a £5 billion cladding remediation package. However, details of what was planned were sketchy at best and so it is pleasing that the consultation setting out further detail of the parameters of the tax has been so swiftly published.

This post takes a look at the consultation starting with a recap of why such a tax has been introduced. It then looks at what is being proposed, timelines for introduction and what will happen next.  Continue reading

REUTERS | Toru Hanoi

You are no doubt aware that it is absolutely essential to reserve your position on jurisdiction as early as possible in adjudication proceedings. The reservation itself must also be as specific as possible, as discussed by Coulson LJ in the Court of Appeal decision in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd (this point was not appealed to the Supreme Court).

But how much thought have you given to the possibility of inadvertently waiving the right to raise jurisdictional objections following receipt of the adjudicator’s decision?

This point, and a number of relevant authorities, were recently explored in Croda Europe Ltd v Optimus Services Ltd. Continue reading

REUTERS | Toby Melville

As recently discussed, contract interpretation is, relatively, easy when the words are very clear. But once a potential ambiguity is identified, it becomes necessary to look at what makes commercial sense, as well as what has been described as the factual background, or the “matrix of fact” referred to in Prenn v Simmonds.

More recently, this was described as “the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract” (Rainy Sky v Kookmin Bank). Identifying the knowledge reasonably available to the parties seems easier than identifying what makes commercial sense, which I looked at in February. Continue reading

REUTERS | Henry Nicholls

My TCC birthday list

I recently learned that the Technology and Construction Court (or, more precisely, the Official Referees’ Court as it was known until 1998) will soon celebrate its 150th birthday, having started life in 1873.

No birthday would be complete without a birthday list of long-desired gifts but, as a public body staffed by public servants, there is little point in trying to think of what presents we could give as they couldn’t be accepted anyway. Rather, I decided to come up with a list of presents that the TCC could give us, the construction law community, and it’s in the form of issues that I would like to see decided by the court before its landmark birthday.

What I have in mind are the types of issues we see crop up in adjudication, as well as arbitration and litigation, where there are arguable grey areas in the current case law, or no case law directly on the point. Here’s my first crack at the list (and I’ve left room for you to insert your issue of choice too). Continue reading

REUTERS | Jonathan Drake

Some breaches of contract do not become apparent until many years have passed. This is especially true where the result is a defect. Recently, our colleague Charlotte Mears blogged on limitation periods under contract. But what happens after the limitation period under a contract has expired?

This blog explores the extent to which an answer lies in tort focusing on the tort of negligence. Continue reading

REUTERS | Jon Nazca

Your starting point, like mine, to the above question, which I will leave you to mull over the Easter break, is likely “of course!”. But why?

This question was first explored by Peter Clyde in his blog in 2012. Since then we have had the benefit of the Supreme Court’s decision in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc, but does this change the analysis? Continue reading

REUTERS | Dinuka Liyanawatte

Dispute boards are not that common on projects in the UK. Insofar as any of us think about it, I’m sure we’d point to the Construction Act 1996 and say it’s because of section 108 and the right for parties to a construction contract to refer a dispute to adjudication at any time. That right affects the way the dispute resolution clause of their contract works and, if the parties have agreed to use a dispute board, they must ensure those provisions comply with the Construction Act 1996, otherwise, they will find the adjudication provisions in Part I of the Scheme for Construction Contracts 1998 will be implied into their contract instead. Then it will be bye bye dispute board. Continue reading

REUTERS | Yves Herman

On the face of it, the law of limitation seems fairly straightforward. The law in England and Wales specifies that anyone bringing a breach of contract claim has six years from the date of the breach in which to do so. This period is extended to 12 years from the breach of contract if the contract has been executed as a deed. But what happens when a provision such as the one below is added into the mix? Does this work to extend the limitation period? If not, what exactly does this provision, which I’ll refer to as the Proposed Clause, mean?

“No action or proceedings for any breach of this Deed shall be commenced against the Contractor after the expiry of 12 years following Practical Completion.”

The importance of understanding both when time starts running and when it expires cannot be overstated. We are all aware of the serious consequences of getting it wrong: no matter how strong a claim is, if the limitation period has expired, the defendant has a cast-iron defence to that claim. Continue reading

REUTERS | Vincent Kessler

This post is the third part of a series covering issues that frequently arise in international arbitration, each with a specific regional focus. This post addresses the enforcement of arbitral awards, and the potential liability of arbitrators and experts practising in the region. We also consider the impact of COVID-19 on these two topics. Continue reading