Legal News

On 15 May 2024, the Joint Contracts Tribunal ( JCT) issued the 2024 editions of its Minor Works Building Contract ( MW), Minor Works Building Contract with contractor’s design ( MWD), Minor Works Sub- Contract with sub-contractor’s design ( MWSub/ D), Short Form of Sub- Contract ( Short Sub) and Sub-subcontract ( Sub Sub), building on the 17 April 2024 release of its Design and Build Contract suite (see News Analysis: The JCT Design and Build Contract 2024—what’s changed?) and the 10 July 2024 publication of the Minor Works Building Contract suite, Short Sub- Contract and Sub- Sub Contract (see News Analysis: JCT 2024 Minor Works Building Contracts and Sub–contract, Short Subcontract and Sub-subcontract released). The JCT IC and ICD forms are, as their titles imply, designed to occupy the middle ground for both project complexity and contractual provisions, bridging the space between lower value...

The Royal Institute of British Architects ( RIBA) has issued a new Building Regulations Principal Designer Professional Services Contract. This article reviews its contents and, in particular, how it addresses the newly imposed duties on Principal Designers under the Building Regulations 2010 (the Building Regulations), SI 2010/2214, Pt 2A. Suitability From the outset, the document explains when the contract should, and should not, be adopted. Although its primary purpose is to appoint a Principal Designer to meet obligations under Part 2A of the Building Regulations, it is equally framed for commissions on commercial projects of any scale, let under any procurement route—including design and build before novation—where construction works will proceed on either bespoke or standard form contracts. It is therefore not intended for domestic clients. The contract further identifies the business clients it is aimed at, which can include: charities ...

Abbey Healthcare ( Mill Hill) Ltd v Augusta 2008 LLP (formerly Simply Construct ( UK) LLP) [2024] UKSC 23 What are the practical implications of this case? The court considered whether a contractor’s collateral warranty qualifies as a ‘construction contract’ under HGCRA 1996, s 104, thereby conferring a statutory right to adjudicate under HGCRA 1996, s 108. That status depended on whether the warranty was a contract ‘for... the carrying out of construction operations’ within HGCRA 1996, s 104(1)(a). The decision confirms that: a collateral warranty will only be a construction contract under HGCRA 1996, s 104(1)(a) where the contractor undertakes to the beneficiary an obligation to perform construction operations that is separate or distinct from its obligation to do so under the related building contract (or other appointment) a collateral warranty that simply warrants the contractor’s performance of its obligations to the employer under the...

Reclaiming Motion by Tilbury Douglas Construction v Arup ( Scotland) Ltd [2024] CSIH 15 What are the practical implications of this case? This decision showcases a striking turnaround on appeal following a substantial defeat at first instance, illustrating how an adverse result below can be reversed. The Inner House of the Court of Session rejected the lower court’s analysis that the action had been brought in time, holding that approach to limitation could not be sustained. The case is directly relevant to parties issuing proceedings against an engineer, adviser or designing contractor because it engages the Prescription and Limitation ( Scotland) Act (‘the Act’) and clarifies the procedure the court ought to adopt for receiving and testing evidence when that Act is in play. It is equally pertinent for those involved with novated professionals who are alleged to have erred, shedding light on the way mutual...

Key features H( CR)( S) A 2024 sits at the heart of the Scottish Government’s reply to concerns about external wall cladding raised after the Grenfell Tower tragedy in June 2017. Its purpose is to quicken the appraisal and repair of buildings with potentially unsafe cladding, while bringing developers into that work. To that end, H( CR)( S) A 2024 puts in place three linked measures, one of which is Single Building Assessments. Single Building Assessments Single Building Assessments ( SBAs) form a central pillar of H( CR)( S) A 2024, intended to compile a register of Scottish buildings that may have cladding risks. SBAs are confined to residential properties that feature an external cladding system; there is no power to roll them out to non‑residential premises. The Scottish Government may vary the other qualifying tests: the building is flatted; it exceeds 11m in...

The Labour Manifesto Labour’s manifesto, titled ‘ Change’, was released ahead of the General Election. It outlines a programme of actions the party vowed to deliver once in office, as has now occurred. The document says ‘ the climate and nature crisis is the greatest long-term global challenge that we face’ and that ‘ economic growth, energy security, lower bills, and addressing climate change can be complementary ’. Consequently, most green commitments sit in the second of five missions to ‘rebuild Britain’, focused on making ‘ Britain a clean energy superpower’. At the heart of this is the Green Prosperity Plan, which—working with business through a National Wealth Fund—will invest to help the most energy intensive sectors decarbonise. The Manifesto also pledges action on the nature emergency, addressing pollution in rivers and seas, widening access to nature, supporting...

Labour’s manifesto, ‘ Change’, set out a programme the party vowed to deliver once in government, a position it has now achieved. The stream of reform in property law and measures touching the property industry — the Leasehold Reform ( Ground Rent) Act 2022, the Levelling-up and Regeneration Act 2023 ( LURA 2023) and the Building Safety Act 2022 ( BSA 2022) — shows no sign of slowing now Labour holds power. Reforms from recent years continue to shape the property landscape, with no indication of abatement under the new government. Labour’s position suggests continuity rather than pause in this agenda for now. Leasehold and enfranchisement reform The incoming administration must progress the Leasehold and Freehold Reform Act 2024 ( LFRA 2024), which secured Royal Assent in the ‘wash up’ on Parliament’s final day before dissolution. Most of LFRA 2024 will be commenced by...

Clean power by 2030 The government has set ambitious goals to double onshore wind, triple solar generation, and increase offshore wind fourfold by 2030. The previous administration's de‑facto block on onshore wind that existed is anticipated to be lifted 'immediately'. It also plans investment in carbon capture and storage, hydrogen and marine energy technologies, and to secure the UK's access to long-duration energy storage. At the same time, the government is expected to retain a strategic back-up of gas-fired power stations to safeguard security of supply, and acknowledge a continuing place for oil and gas within the UK's energy mix. Establishment of Great British Energy Within its first year in office, the new government plans to create a publicly owned clean energy company, ' Great British Energy'. Great British Energy will collaborate with energy firms, local authorities and co-operatives to co-invest in clean power schemes,...

In this issue: Standard form contracts Building Safety Construction disputes Procurement in construction Construction industry news Lex Talk®Construction: a Lexis®Nexis community Daily and weekly news alerts Construction trackers Standard form contracts JCT has confirmed the timetable for the 2024 Intermediate Building Contract suite, with publication set for 10 July 2024. Alongside the core contracts, sub-contracts and guidance, JCT will also issue the Intermediate Building Contract 2024 and the Intermediate Building Contract with contractor’s design 2024 Admin – Contract Administration Model Forms. These materials will be available via the JCT online store, JCT On Demand or the Construct digital subscription service, or to order in hard copy from the release date, with reference copies appearing on Lexis+® within Practice Note: JCT contracts 2024 shortly after publication. See: LNB News 27/06/2024 86. RIBA has launched a new Building Regulations Principal Designer Professional Services Contract, suitable for appointing a Building Regulations Principal Designer by a...

In this issue: Standard form contracts Building safety Expert witnesses Construction industry news Daily and weekly news alerts New and updated content Construction trackers Standard form contracts CLLS publishes 2024 edition of Letter of Intent The CLLS has released the refreshed 2024 edition of its Letter of Intent. Our commentary reviews the revisions made. See News Analysis: City of London Law Society publishes 2024 edition of Letter of Intent. Court refuses declaratory relief in JCT termination payment dispute ( Shaylor v Valesecure) In Shaylor Group Ltd (in administration) v Valesecure Property Ltd (in liquidation) [2024] EWHC 750 ( TCC), the Technology and Construction Court declined to issue declarations regarding the contractor’s right to payment after the termination of a JCT-based contract. In doing so, the court explored noteworthy issues of contractual interpretation, including the methodology for assessing sums owed to the...

Stellantis Auto SAS & others v Autoliv AB & others [2024] EWCA Civ 609 What are the practical implications of this case? Although earlier authorities have addressed the appointment of a single joint expert between opponents, there has, until now, been little examination of when the court may require parties on the same side to share such an expert. This decision provides valuable guidance, clarifying the approach to be taken in that scenario. The court confirmed that, in determining whether a single joint expert is appropriate, two core factors will be paramount: first, the imperative to manage proceedings justly and proportionately in accordance with the overriding objective; and second, the obligation to limit expert testimony to what is reasonably necessary for resolving the claim. Perhaps most noteworthy for...

The CLLS has issued an updated 2024 version of its Letter of Intent ( CLLS LOI), accompanied by associated guidance notes. In this analysis, we set out and assess the amendments that have been made. The prior iteration, dating from 2007, required several tweaks to bring it into line with developments in law—most notably the Construction ( Design and Management) Regulations, which in 2015 superseded the 1994 regime cited in the 2007 CLLS LOI—as well as a change to the relevant clause reference concerning the insurance provisions within the JCT contracts released in 2011, 2016 and 2024. In addition to these updates driven by changes in law, the CLLS LOI has been refreshed in a range of other respects, which are explained in more detail below. Those textual and regulatory updates sit alongside broader drafting...

Shaylor Group Ltd (in administration) v Valescure Property Ltd (in liquidation) [2024] EWHC 750 ( TCC) What are the practical implications of this case? This judgment offers useful insight into how termination and assignment mechanisms function under JCT forms of contract. The contract here appears to have been a JCT Design and Build Contract ( DB)—although that was not expressly confirmed. The key takeaways for practitioners include: amounts payable to the contractor on termination: the court helpfully separated the approach to valuing what is owed to the contractor after termination where the employer chooses to finish the works using another contractor, from situations where the employer decides not to complete the works. If the employer proceeds to completion via a replacement contractor, the original contractor should receive credit for the contract price of the works when assessing the payment due following termination (see, for example, clause 8.7.6 in the JCT DB...

Replacement of an expert witness following impermissible interference by solicitors ( Glover and another v Fluid Structural Engineers & Technical Designers Ltd and others) Glover and another v Fluid Structural Engineers & Technical Designers Ltd and others [2024] EWHC 1257 ( TCC) What are the practical implications of this case? On the claimants’ own account, their solicitors were deeply involved in crafting the expert’s joint statement. Mr Lofthouse KC accepted that this interference arose from a misunderstanding rather than any wilful flouting of the governing principles, and the claimants acknowledged the conduct was improper. Paragraph 13.6.3 of the TCC Guide states clearly that a party in breach may, as occurred here, compromise its ability to rely upon its own expert’s views. Mr Lofthouse KC then addressed the claimants’ request to instruct a new expert. From that consideration, the following practical points can be drawn...

In this issue: Contract law PFI/ PF2 contracts Construction industry news Daily and weekly news alerts New and updated content Construction trackers Contract law Compliance with a notification clause—does the other side know enough? ( Drax v Scottish Power) In Drax Smart Generation Holdco Ltd v Scottish Power Retail Holdings Ltd [2024] EWCA Civ 477, the Court of Appeal examined the contractual rules on notices of claim. These notification provisions are commonplace in share purchase agreements and, with growing regularity, in other forms of agreement. In essence, such clauses state that, before one party can bring a claim against the other, the claimant must first serve a notice of that claim on the counterparty. Non-compliance with the notification clause can render the claim unenforceable and expose it to being struck out and/or summarily dismissed. What, then, amounts to...

Pevensey Coastal Defence Ltd v Environment Agency [2024] EWHC 1435 ( TCC)) What are the practical implications of this case? This dispute is highly fact‑sensitive, largely focused on construing terms in a particular PFI contract. Nonetheless, some issues of broader interest arise from the circumstances prompting the claim and the treatment of clauses addressing adverse weather — here, the escalation in storm activity along the Sussex coast — within a PFI arrangement that began in 2000 and ends in 2025. Parties might scrutinise the Change Control Schedule wording in the judgment and decide whether to seek the same outcome recognised here (namely, that costs could be recoverable where there has been a material rise in storm incidents/adverse weather). In essence, the issue was whether the Change Control Schedule allowed recovery of extra costs from a material uptick in storm events. Similar PFI parties should review that...

Drax Smart Generation Holdco Ltd v Scottish Power Retail Holdings Ltd; Drax Smart Generation Holdco Ltd v Scottish Power Retail Holdings Ltd [2024] EWCA Civ 477 What are the practical implications of this case? The Court of Appeal in Drax appears to have taken a commercially minded, substance‑over‑form stance when construing notification clauses. On one view, that marks a move away from the robust (and arguably overly stringent) approach seen in recent authorities, including the High Court’s decision in Drax and the Court of Appeal’s judgment in Decision Inc Holdings Proprietary Ltd v Garbett [2023] EWCA Civ 1284 ( Garbett). In Garbett, Newey LJ held that a similarly worded clause required the claimant to give an estimated amount for each individual breach, rather than a single global figure for the entire claim. Garbett can read as somewhat severe, and how far its reasoning coheres in...

In this issue: Adjudication Building safety Planning Litigation Construction industry news Daily and weekly news alerts New and updated content Construction trackers Adjudication Contractual interpretation in adjudication disputes ( Dawnvale v Hylgar) In Dawnvale Cafe Components Ltd v Hylgar Properties Ltd [2024] EWHC 1199 ( TCC), the court reviewed the reach of a Tomlin Order/ Settlement Agreement concluded after settling enforcement of an adjudicator’s decision, and assessed whether its wording barred a proposed second adjudication. It also had to determine if that proposed reference raised a dispute already resolved by the first adjudication. This ruling underlines the need for exact drafting in settlement agreements and the prospect of further claims where matters are not expressly concluded. Written by Michael O’ Connor, partner at Charles Russell Speechly LLP. See News Analysis: Contractual interpretation in adjudication disputes ( Dawnvale v Hylgar). Building safety Building liability orders: court gives guidance on procedures in first reported case ( Wilmott Dixon v...

Wilmott Dixon Construction Ltd v Prater Ltd and others [2024] EWHC 1190 ( TCC) What are the practical implications of this case? This ruling marks the first reported instance of a court considering an application for a BLO under section 130 of the Building Safety Act 2022 ( BSA 2022). Under BSA 2022, s 130, the High Court may issue a BLO where it regards it as just and equitable to do so. A BLO provides that a ‘relevant liability’ incurred by one corporate body (the original body) is also owed by a corporate body linked with it (the associate). ‘ Relevant liabilities’ include those arising from ‘building safety risks’, or under the Defective Premises Act 1972. Corporate bodies are associated if one controls the other, or a third body controls both, in accordance with BSA 2022, s...

Dawnvale Cafe Components Ltd V Hylgar Properties Ltd [2024] EWHC 1199 ( TCC) What are the practical implications of this case? The judgment carries significant weight for practitioners drafting settlement agreements following adjudications in construction matters where further disputes may loom. It reinforces the need for exact wording in Tomlin Orders/ Settlement Agreements, above all when delineating what has been compromised. The court concluded that the settlements’ wording—specifically the phrase ‘all claims the claimant may have against the defendant arising from or in connection with these proceedings’—did not prevent Hylgar from seeking additional losses in a subsequent adjudication. The judge observed that any wish to extinguish future claims should have been made plain by referencing all claims arising from or connected with ‘the contract’, ‘the works’, or ‘the dispute(s)’, rather than ‘these proceedings’. Where the parties aim to draw a line under every...