Legal News

Engenda Group Ltd v Petroineos Manufacturing Scotland Ltd [2024] CSOH 36 What are the practical implications of this case? This decision offers a notable application of the Court of Appeal judgment in Sudlows v Global Switch—delivered only after the two adjudications had been determined—and, more generally, a reaffirmation of the principles governing serial adjudication. It illustrates the practical limits on re-running disputes across successive adjudications, even where later authorities might be relied upon. Most strikingly, the employer here, having failed to prove the scale of its unliquidated damages in the first reference, was not allowed to cure that deficiency in a second reference addressing a pay less notice for the identical sum by deploying expert material that had not been advanced previously. In short, what was not proved the first time could not be shored up the second time by drafting in experts after the...

In this issue: Building Safety Standard form contracts Adjudication Arbitration Litigation Construction industry news Daily and weekly news alerts New and updated content Construction trackers Building Safety HSE sets out new arrangements for registering building control inspectors in England. The HSE has issued a letter to the Building Control Industry detailing fresh transitional measures for the registration of building control inspectors in England. These measures provide a 13‑week extension to the window for competence assessments, moving the deadline from 6 April 2024 to 6 July 2024. By 14 March 2024, 3,261 practitioners had started their registration applications to register. The HSE’s Director of Building Safety, Philip White, acknowledged in his letter the possible repercussions for the construction sector if insufficient inspectors are registered to practise by the legal deadline of 6 July 2024. White reiterated the imperative to keep driving up professional standards and stressed that the reforms introduced after the Grenfell Tower tragedy must not be...

What are the practical implications of this case? This judgment offers practical direction to counsel weighing an application to the court to displace an arbitrator for apparent bias under section 24(1)(a) of the Act. At the same time, it spells out for arbitrators the kinds of objective conduct that may point towards apparent bias, irrespective of their own subjective opinions or any self-imposed discipline exercised when scrutinising the underlying evidence. The court underlined that allegations of apparent bias will be assessed through a measured and pragmatic lens. Its conclusion that mere professional acquaintanceship in a relatively small market will not, of itself, constitute a problem is encouraging for arbitration in sectors such as maritime and sport, where disputes routinely involve parties together with their factual and expert witnesses, and dispute resolution professionals who are professionally familiar with one another. The decision also serves as a...

Fire safety reinsurance facility On 13 March 2024, the Association of British Insurers ( ABI) announced that a fire safety reinsurance facility aims to expand insurers’ capacity to cover buildings pending remediation, while stimulating competition to draw more providers into the market. It is intended to bolster available capacity and encourage wider participation across the market. The facility, arranged by Mc Gill and Partners, is due to go live on 1 April 2024. It has backing from the ABI and the British Insurance Brokers’ Association and was created in the aftermath of the Grenfell disaster, when a high-rise residential block burned for 60 hours, resulting in 74 fatalities. The building’s external cladding contributed to the fire’s spread. Steve Mc Gill, founder and chief executive of Mc Gill and Partners, noted that insuring cladded, multi-occupancy properties presenting fire safety risks has long tested the sector. Yet the...

In this issue: Contract law Building safety Planning Construction industry news New and updated content Daily and weekly news alerts Construction trackers Contract law Recovering loss and expense—service of notice is a condition precedent under Scottish SBC contract ( FES v HFD Construction) In FES Limited v HFD Construction Group Ltd [2024] CSOH 20, the Outer House of the Court of Session confirmed that, under the Standard Building Contract with Quantities for use in Scotland, 2016 edition (the Scottish SBC terms), a contractor’s right to recover loss and expense arising from a Relevant Matter is contingent on serving notice of that Relevant Matter on the Architect/ Contract Administrator. This ruling will interest those advising on other agreements within the Scottish Building Contract Committee 2016 suite, and likewise advisers working with the Joint Contracts Tribunal 2016 suite, as the loss and expense provisions in those forms are materially similar to the Scottish SBC terms. See News...

FES Ltd v HFD Construction Group Ltd [2024] CSOH 20 What are the practical implications of this case? This decision establishes that, under the Scottish SBC conditions, a contractor’s right to recover direct loss and expense stemming from a Relevant Matter ( RM) depends upon notifying the Architect/ Contract Administrator of the RM promptly, once its probable impact becomes reasonably evident. Put differently, service of such notice is a precondition to the contractor’s entitlement. Timely notice is therefore essential to secure any entitlement. The court regarded this result as unavoidable, given the plain text of the operative clauses, and as consonant with commercial common sense. Parties working with contracts founded on the Scottish SBC should, accordingly, implement measures to secure compliance with these requirements. Conversely, those who would prefer that recovery of loss and expense is not made contingent upon the issue of a notice ought to...

In this issue: Spring Budget 2024 Building safety Construction Disputes Construction industry news Lex Talk®Construction: a Lexis®Nexis community Daily and weekly news alerts Construction trackers Spring Budget 2024 Spring Budget 2024—key construction announcements On 6 March 2024, the Chancellor of the Exchequer, the Rt Hon Jeremy Hunt MP, set out the Spring Budget 2024, outlining several measures affecting the construction sector. Highlights cover financing for transport networks, changes to the Investment Zones programme, boosting the availability of housing, and encouragement for spending on plant, machinery and equipment. See: LNB News 06/03/2024 112. Building safety Welsh Government releases circular letter on regulations made under BSA 2022 The Welsh Government has issued a circular to inform the Building Control community that the Building ( Restricted Activities and Functions) ( Wales) Regulations 2024—made under the BSA 2022 in...

From 1 October 2023, a broad suite of fresh obligations and processes came into operation across the regime, with the most recent statutory instrument—the Building Safety Act 2022 ( Commencement No 6) Regulations 2024—commencing on 13 January 2024, and further measures anticipated in due course. There have already been multiple judicial decisions addressing the construction and interpretation of important features and central issues of the BSA 2022. In particular, since August 2023 the First-tier Tribunal ( FTT) has already delivered two determinations concerning remediation orders under SA 2022, s 123, increasing the total number of reported decisions to three and supplying welcome guidance on the FTT’s treatment of applications in this developing sphere of practice. The first determination is Sarah Waite v Kedai Ltd, issued on 9 August 2023, and the second is Triathlon Homes LLP v Stratford Village...

Introduction In recent years, AI has advanced markedly, notably in its capacity to produce sophisticated material via what is termed ‘generative AI’. This piece explores areas of construction disputes that might be streamlined and enhanced through a leading strand of generative AI: large language models ( LLMs), which can review and create substantial volumes of text. LLMs are trained on immense datasets, enabling them to infer and anticipate the next word, or sequence of words, within a passage. By modelling linguistic patterns across vast corpora, these systems generate coherent continuations that align with context over long passages. This underpins their utility for text-heavy tasks, particularly. On 2 February 2024, the House of Lords Communications and Digital Committee issued its report on ‘ Large language models and generative AI’, cautioning against missing the chance to harness emerging AI and slipping behind rivals by...

January 2024’s ruling in Archer Western- De Moya Joint Venture v Ace American Insurance Co, following the 2023 outcome in South Capitol Bridgebuilders v Lexington Insurance Co, is set to draw attention from insurance market participants in other jurisdictions, given the shortage of reported LEG decisions, not least because these disputes frequently arise in arbitrations that remain unreported. When America sneezes, the world can sometimes catch a cold; insurers active in this sphere will be hoping that is not the result here... Background CAR policies typically insure all risks of loss and damage on construction or building projects, yet they commonly exclude, to varying extents, matters such as design faults or workmanship defects. The LEG defects clauses present three alternative exclusion formulations for CAR wordings. The broadest carve-out, and therefore the least cover, is LEG 1, which provides that the insurer 'shall not be liable for: Loss or...

In this issue: Building Safety Tort law Procurement in construction Construction industry news Daily and weekly news alerts New and updated content Construction trackers Building Safety Welsh Government releases Building Safety Act 2022 ( Commencement No. 4 and Transitional and Saving Provisions) ( Wales) Regulations 2024 and accompanying circular letter The Welsh Government has laid the Building Safety Act 2022 ( Commencement No. 4 and Transitional and Saving Provisions) ( Wales) Regulations 2024 and also issued an accompanying circular notifying the Building Control sector of these regulations. The regulations come into force on 6 April 2024 and are made pursuant to BSA 2022. They include transitional provisions that will allow building inspectors in Wales to continue working while undergoing competency verification for the period from 6 April 2024 to 1 October 2024. See: LNB News 27/02/2024 56. HSE announces BSR campaign for high-rise residential building safety awareness The Health and Safety Executive ( HSE) has...

In this issue: Litigation Building safety Environmental issues Construction industry news Daily and weekly news alerts New and updated content Construction trackers Litigation Contractor was bound by cap in letter of intent ( CLS v WJG Evans) In CLS Civil Engineering Ltd v WJG Evans and Sons (a partnership) [2024] EWHC 194 ( TCC), the TCC held that the parties did not conclude a formal construction contract for the development, so their dealings continued to be controlled by a letter of intent ( LOI). As a consequence, the contractor’s right to payment was confined to the LOI’s ceiling, which was below its assessment of the completed works. The judgment also offers practical guidance on which disputes are apt for resolution under Part 8 proceedings. Refer to News Analysis: Contractor was bound by cap in letter of intent ( CLS v WJG...

CLS Civil Engineering Ltd v WJG Evans and Sons (a partnership) [2024] EWHC 194 ( TCC) What are the practical implications of this case? This judgment addresses two principal issues of interest to construction lawyers: Letters of intent: The dispute starkly demonstrates the hazards of progressing works under an LOI without putting a formal contract in place. As is frequently seen, the LOI set a financial ceiling on payments to the contractor. The parties did not conclude a formal building agreement or lift that ceiling—so the court held the contractor’s recoverable amount was confined to a figure below its valuation of the finished works. LOIs create exposure and ambiguity for both employer and contractor, reinforcing the need to sustain momentum towards executing a full contract, and to ensure LOIs adequately cover the core elements of the relationship and the works (including price, the timeframe for...

In this issue: Building Safety Adjudication Litigation Collateral Warranties Construction industry news Daily and weekly news alerts New and updated content Construction trackers Building Safety Building Safety Act 2022 ( Remediation contribution orders) ‘just and equitable’ test ( Triathlon Homes LLP v Stratford Village Development Partnership and others) In Triathlon Homes LLP v Stratford Village Development Partnership and others [2024] UKFTT 26 ( PC), the First-tier Tribunal ( FTT) offered guidance on how the ‘just and equitable’ test should be applied to Remediation Contribution Orders under BSA 2022, s 124. Authored by Andrew Butler KC, barrister at Tanfield Chambers, London. See News Analysis: Building Safety Act 2022 ( Remediation contribution orders) ‘just and equitable’ test ( Triathlon Homes LLP v Stratford Village Development Partnership and others). HSE publishes BSR register of higher-risk buildings The HSE has released details from the BSR’s...

Triathlon Homes LLP v Stratford Village Development Partnership and others [2024] UKFTT 26 ( PC) (not reported by Lexis Nexis®UK) What are the practical implications of this case? Since the BSA 2022 received Royal Assent on 28 June 2022, advisers have keenly anticipated how its knottier provisions would be read by the courts in practice across disputes and regulatory contexts of real significance for those operating in building safety matters daily. From that perspective, this ruling is something of a goldmine. The FTT—after the judges swiftly reconstituted themselves, having realised that, sitting as the Upper Tribunal as intended, they lacked power to make a Remediation Contribution Order ( RCO)—was confronted with a number of what could fairly be called ‘hot topics’. Chief among them, in the extensive closing part of their judgment, was an analysis of what is, and is not, pertinent when applying the ‘just and...

WOL ( London) LLP v Croydon Investments Ltd and others [2024] EWHC 251 ( TCC) What are the practical implications of this case? Although the dispute turned heavily on its own facts, the decision offers a clear illustration of the courts’ stance on applications for summary judgment and strike-out. The court signalled caution about disposing of claims summarily where the core question is contractual interpretation. Here, the defendant argued that the claimant’s case was barred by provisions in a sale and purchase agreement between the parties. The court rejected that contention, noting it could only have entered judgment for the defendant if the defendant’s construction of the agreement was “beyond any realistic contradiction”. That is a demanding threshold, so parties should reflect carefully on the prospects, risks and expense of pursuing summary judgment or strike-out where the dispute hinges on construing...

In this issue: Litigation Building Safety Construction industry news Environmental issues Daily and weekly news alerts New and updated content Construction trackers Litigation Late application to rely on expert evidence is not an application for relief from sanctions ( Yesss ( A) Ltd v Warren) In Yesss ( A) Ltd v Warren [2024] EWCA Civ 14, the Court of Appeal distinguished between out-of-time bids to introduce factual material and delayed efforts to rely on expert opinion. The former amounts to a request for relief from sanctions and is to be decided by the Denton principles, whereas the latter is not and should be determined by reference to the overriding objective. Authored by Phillip Patterson, barrister, Gatehouse Chambers. Refer to News Analysis: Late application to rely on expert evidence is not an application for relief from sanctions ( Yesss ( A) Ltd v...

Yesss ( A) Ltd v Warren [2024] EWCA Civ 14 What are the practical implications of this case? This judgment adds to the series of significant Court of Appeal decisions on relief from sanctions. It confirms that a late bid to adduce expert evidence, where the trial date is unaffected, is not a relief from sanctions application, so the Denton principles do not apply. In doing so, it resolves a clash in earlier High Court rulings on this issue. The ruling also has broader significance in two respects: It indicates that the notion of implied sanctions in the rules is tightly limited, apparently restricted to notices of appeal and respondent’s notices. As a material counterbalance to the overall tenor, it stresses that the shift towards stricter adherence to rules, orders and practice directions operates not only within the sanctions framework but also across...

In this issue: Building safety Litigation Adjudication Construction industry news Lex Talk®Construction: a Lexis®Nexis community Daily and weekly news alerts New and updated content Construction trackers Building safety CSG publish report pushing for building safety improvements CSG has released a report, ‘ A Higher Bar - Achieving a Competence-led Built Environment’, centred on competence in respect of building safety and the broader built environment. It introduces fresh standards and frameworks spanning the built environment and fire sectors, encouraging organisations and individuals to embrace enhanced competencies, practices and measures to raise safety levels. See: LNB News 29/01/2024 68. Guidance on mandatory occurrence reporting HSE has issued three sets of guidance on mandatory occurrence reporting for higher-risk buildings. In guidance entitled ‘ Submit a mandatory occurrence notice and report’, HSE explains who is required to submit mandatory occurrence notices and when, and...

UK Grid Solutions Ltd and Amey Power Services Ltd v Scottish Hydro Electric Transmission Ltd [2024] CSOH 5 What are the practical implications of this case? This decision reiterates the governing principles for assessing whether an adjudicator overlooked a defence advanced by the respondent. Where an adjudicator does not engage with a defence that would have been significant to the resolution of the dispute, the resulting award will be incapable of enforcement ( Construction Centre v Highland Council). That said, the lesson emphasised here is that an adjudicator is not obliged to tackle every point ventilated in the referral, so long as their reasoning sufficiently discloses the route to the conclusion reached. In addition, the judgment confirms that the court will not decline to enforce merely because the terms of the adjudicator’s orders contain mistakes, provided it remains plain what orders were in fact...