Legal News

Lancashire Schools SPC Phase 2 Ltd v Lendlease Construction ( Europe) Ltd [2024] EWHC 37 ( TCC) What are the practical implications of this case? This ruling illustrates that the court retains a discretion to refuse striking out and staying proceedings, even where a party has failed to abide by compulsory alternative dispute resolution obligation. That conclusion may come as a surprise to practitioners who might anticipate steps to enforce mandatory alternative resolution clauses. The court, however, weighed the practical difficulties that would emerge if the claim brought solely against the fourth defendant were put on hold. Imposing a stay in that context posed a risk of either postponing the progress of the litigation overall, or of the claim against the fourth defendant advancing on a different timetable from the other claims within the proceedings. The obligatory character of the ADR clause, which...

In this issue: Building safety Procurement in construction Construction industry news Daily and weekly news alerts New and updated content Construction trackers Building safety DLUHC publishes Building Safety Levy consultation updates DLUHC has issued its response to a consultation seeking feedback on how the Building Safety Levy ( BSL) ought to be designed and put into effect. Alongside, the department has opened a further technical consultation on the BSL, concentrating on the method for levy calculation, the collection arrangements, disputes and appeals, and additional exclusions. This consultation will formally close on 20 February 2024. See: LNB News 24/01/2024 16......

In this issue: Building Safety Adjudication Litigation Environmental issues Payment Construction sector news Daily and weekly news bulletins New and revised content Construction trackers Building Safety Building Safety Act 2022 ( Commencement No.6) Regulations 2024 Under the Building Safety Act 2022 ( Commencement No.6) Regulations 2024, SI 2024/40, additional provisions in Part 4 of the Building Safety Act 2022 took effect on 16 January 2024. Part 4 of the BSA 2022 addresses the management of risks and other matters for occupied HRBs in England, including the occupation‑phase requirements of the HRB regime. The provisions commenced cover ss 79–81, which impose the principal accountable person ( PAP)’s duty to apply for building assessment certificates; ss 83–84, which define the PAP’s obligations for managing building safety risks; and further requirements regarding information the PAP must supply to the...

Bellway Homes Limited v Surgo Construction Limited [2024] EWHC 10 ( TCC) What are the practical implications of this case? In adjudications governed by the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), a party is permitted to place only one dispute before the adjudicator ( HGCRA 1996, s 108(1)). Where more than one dispute is advanced, the adjudicator has no jurisdiction to proceed ( Fastrack v Morrison). This decision is the first to address whether a payee’s interim payment claim that proceeds on two alternative footings—(i) the true valuation of the works and/or (ii) entitlement to the sum applied for because no valid payment or pay less notice was served (often termed a ‘smash and grab’ claim)—should be treated as a single dispute. The court concluded that it is one dispute, with the consequence that an adjudicator has...

Introduction Section 32(1)(b) of the Limitation Act 1980 ( LA 1980) defers the start of the ordinary limitation period where any fact material to the claimant’s cause of action has been deliberately kept from the claimant by the defendant. Under LA 1980, s 32(2), for the purposes of s 32(1), a deliberate breach of duty carried out in circumstances where it is unlikely to be discovered for a period counts as deliberate concealment of the facts bound up with that breach of duty, for those purposes in question. These rules are plainly pertinent to construction contracts, and defects in particular. The covering up of substandard workmanship and/or defective works arising from poor design in the normal course of construction frequently leads to the much later appearance of defects through physical damage, or to the uncovering of the poor...

In this issue: 2023 in review Consultant appointments Building safety Insurance in construction Construction industry news Daily and weekly news alerts New and updated content New Q& As Construction trackers 2023 in review Construction in 2023—reviewing the second half of the year and what’s coming in 2024 In our video analysis, Construction—end of year video for 2023, we explored major developments in construction law over the latter half of 2023. This article examines those issues in greater detail, highlights further changes, and considers what may lie ahead this year. See News Analysis: Construction in 2023—reviewing the second half of the year and looking forward to 2024. Consultant appointments Court considers engineer’s scope of duty and liability to repay fees ( Glover v Fluid Structural Engineers) In Jenni Glover & Littleton Glover v Fluid Structural Engineers and Technical Designers Ltd [2023] EWHC 3219 (...

Willmott Dixon Construction Ltd has struck a confidential deal with eight insurers to resolve its High Court action against them, as set out in an order by Judge Sara Cockerill dated 18 December 2023 and only recently made public. The developer had sought full indemnity, yet did not reveal the amount claimed to meet its settlement with the supermarket chain. Among the insurers pursued were Chubb European Group SE, CNA Insurance Co Ltd and Allied World Assurance Co ( Europe) Ltd. The remaining defendants are Axis Specialty Europe SE, AIG UK Ltd, AXA XL Underwriting Agencies Ltd, Asta Managing Agency Ltd and Premia Managing Agency in the case at issue......

Jenni Glover & Littleton Glover v Fluid Structural Engineers and Technical Designers Ltd [2023] EWHC 3219 ( TCC) What are the practical implications of this case? This judgment revisits the principles governing two intricate aspects of professional negligence claims: the linkage between a professional’s scope of duty and the claimant’s recoverable losses, and the situations in which a claimant can reclaim fees paid for inadequate professional work. For those in the construction sector, the key takeaways include: scope of duty: the court indicated that losses recoverable from negligent structural engineers depend on a nuanced, fact-specific evaluation, and are not confined to ‘conventional’ losses, ie damages for defects. In this matter, it was at least arguable that the defendant engineer could be liable for costs the employer claimants said they had wasted investigating claims, arising from deficient information supplied by the engineer ...

Simon Bain Building Services Ltd v Cardone and another [2023] EWHC 2916 ( Ch) What are the practical implications of this case? Although the court determined that the defendants had submitted to the jurisdiction, this did not automatically prevent them from rescuing their position. They knew their Ao S, filed following defective service of the claim form, was late, and then opted to await the court’s directions. The court stressed that the correct step was to seek an extension of time to file the Ao S and apply for relief from sanctions under CPR 3.9. Doing so would have restored their right to contest jurisdiction under CPR 11, provided there had been no separate act of submission. Viewing the defendants’ actions objectively, the judge concluded there had been a submission to the jurisdiction (see further detail below), and that the application to set aside default...

What is embodied carbon and why is it important? There is no single, settled definition of ‘embodied carbon’ in planning legislation or policy. In general, it refers to the greenhouse gas emissions tied to constructing a building—and, depending on the assessment’s scope, dismantling it at end of life—as opposed to the ‘operational carbon’ arising from the building’s use. Together, embodied and operational carbon contribute to a building’s whole‑life carbon emissions. Although progress is still required, the real estate industry has made notable advances in cutting operational carbon, from energy‑efficient lighting to on‑site solar PV, which means embodied carbon is becoming relatively more significant. While embodied carbon has not historically received the same attention as operational carbon, there is now broad recognition that it must be rigorously measured and assessed if the built environment is to support the government’s legally binding objective of reaching net zero by...

Snoozebox Ltd v Health and Safety Executive and another [2023] EWHC 851 ( Ch) What are the practical implications of this case? The immediate takeaway is that, where uncertainty exists, creditors should lodge a proof in a CVA upon receiving notice, or at the very least engage with the CVA nominees ahead of the vote. The central difficulty for the Crown— HSE being treated as its emanation—was its non-participation in the CVA. As its inquiries had not concluded at that stage, it is unsurprising the HSE did not regard the contingent liability as sufficiently concrete to justify taking part. Indeed, attempting to quantify a prospective fine before any inquest would appear counter-intuitive to most prosecutors. Set against that, the judgment underscores the expansive modern scope of provable contingent debts, particularly following Re Nortel Gmb H [2013] UKSC 52. The more...

Bastholm and others v Peveril Securities ( Dalton Park Retail) Ltd and others [2023] EWHC 438 ( Ch) Background The dispute concerned a demand for overage under a Payment Deed connected to the creation of a large designer outlet and retail centre at Dalton Park, County Durham. The Deed identified the ‘ Seller’ as five named individuals and set out a valuation process by expert determination, to be initiated by an application to the Royal Institution of Chartered Surveyors ( RICS). In 2014, those five applied to RICS seeking the appointment of an expert to assess the value of development said to have occurred in 2002. By that time, one of the five had been adjudged bankrupt and later discharged, and his Trustee in Bankruptcy was not included in the approach to RICS. The first defendant, who owned the relevant land, contended that the...

Power and another v Shah [2023] EWCA Civ 239 What are the practical implications of this case? PWA 1996 sets out a statutory framework permitting activity in the vicinity of, or upon, boundary lines. Through its protections, a Building Owner may carry out operations that would, but for the Act, amount to trespass or a private nuisance. An Adjoining Owner is entitled to compensation for any works duly authorised. What works are permitted, and the level of compensation due, are determined by surveyors and recorded in an Award. To rely on PWA 1996, the Building Owner must serve notice. If written agreement to the proposals is not provided, a dispute is treated as having arisen. That dispute then engages the Award process. The scope of PWA 1996 is confined. An Adjoining Owner has no power to set the mechanism in motion alone. However...

Energy Works ( Hull) Ltd v MW High Tech Projects UK Ltd and another [2022] EWHC 3275 ( TCC) What are the practical implications of this case? The comprehensive judgment of the Honourable Mr Justice Pepperall sets out the practical hazards and challenges frequently faced on energy and infrastructure schemes, particularly where advanced technology intensifies complexities in design and construction. It further highlights the significance of a contractor’s reporting duties, within a contractual framework that did not restrict liability for wilful defaults, including the deliberate misreporting of progress. This ruling will be of clear interest to practitioners, construction professionals and other stakeholders working across the construction, infrastructure and energy sectors. The court also provided useful guidance and clarification on several broader legal issues relevant to disputes arising in construction, infrastructure and energy projects. First, the court confirmed that, in the absence of express contractual or statutory...

Court considers concurrent delays and repudiation in post-termination dispute ( Thomas Barnes & Sons plc (in administration) v Blackburn with Darwen Borough Council) Thomas Barnes & Sons plc (in administration) v Blackburn with Darwen Borough Council [2022] EWHC 2598 ( TCC) What are the practical implications of this case? This judgment touches on several matters of real concern to construction practitioners: overlapping delay, the JCT suite’s termination machinery, and the law of repudiation. On concurrency, the court essentially affirmed the approach in Walter Lilly v Mackay, holding that where employer and contractor delays run together, the contractor will typically obtain additional time, yet will not recover the financial consequences of prolongation—often summed up as ‘time, but no money’. The court’s commentary on the rival expert delay analyses will likewise assist those preparing or defending applications for extensions of time. Among other points, it indicated in general terms, that...

Under section 47(6) of The Building Act 1984, approved inspectors were previously obliged to hold specified minimum insurance, with mandatory run-off cover arranged under a scheme approved by the secretary of state; they are now permitted instead to obtain revised levels of professional indemnity insurance on the open market. The reform was introduced to prevent an insurance crisis after the Grenfell Tower tragedy, which had caused many approved inspectors to cease trading and led insurers to stop writing the risk. Since private certification of buildings was introduced in England and Wales in 1984, approved inspectors have consistently struggled to secure adequate insurance. As private building control inspectors lack the financial strength of local authorities, which are permanent statutory bodies, a fundamental feature of the private certification regime was to require private inspectors to carry sufficient cover, ensuring house purchasers had...

Curtiss and others v Zurich Insurance plc [2022] EWHC 1514 What are the practical implications of this case? This ruling provides practical direction on when it is appropriate to pursue an order to strike out a trial witness statement for breaches of CPR PD 57AC, and the manner in which such an application should be advanced. For context, paragraph 5 of CPR PD 57AC underlines that the court retains its complete case management powers and full suite of sanctions, and may—either on application or of its own accord—strike out part or the entirety of a trial witness statement. Recent authorities have offered guidance on timing and proportionality: for example, in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 ( TCC) at [49], Mrs Justice O’ Farrell noted that although an application may properly be brought, it must not give rise to...

Chelfat v Hutchison 3G UK Ltd [2022] EWCA Civ 455 What are the practical implications of this case? On the narrow issue, where a claimant intends to serve out of the jurisdiction without seeking permission, this decision confirms that the court is obliged to issue a claim form submitted without a Form N510 or equivalent notice. Lodging the claim form alone is sufficient, despite text of CPR 6.34(1) stating that ‘the claimant must—(a) file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction’. Turning to the wider point about substitute claim forms, the court adopted a generous interpretation of the phrase ‘as issued’ in CPR PD 7A, para 5.1—‘where the claim form as issued was received in the court office on a date earlier than the date on...

Ukraine conflict—impact of Russian invasion and sanctions on English law contracts—frustration, illegality, force majeure & MAC Does your agreement contain an illegality, force majeure or material adverse change ( MAC) provision and, if so, has it been engaged? This turns on construction, so the orthodox approach applies—scrutinise the pertinent circumstances and the wording of the provision. What, precisely, is the operative occurrence? It might be a legal development (eg whether making payment would constitute a criminal offence) or a factual situation (routes are blocked, power is unavailable, the plant has been hit). Does that occurrence fall within the clause’s reach, expressly or by necessary implication? Many force majeure provisions enumerate events that qualify. An illegality provision may identify the system of law under which performance must have become unlawful. MAC provisions frequently do not delineate what is covered, relying instead on the plain sense of the...

Building Design Partnership Ltd v Standard Life Assurance Ltd [2021] EWCA Civ 1793 What are the practical implications of this case? The Court of Appeal’s unanimous ruling in Building Design Partnership Ltd v Standard Life Assurance Ltd delivers three important and practical takeaways. The first concerns the manner in which a claim is pleaded. As a matter of pleading, the Court confirmed that, in principle, a case relying on sampling and extrapolation may properly be advanced on that footing. In this case, the court expressly determined that such a claim should not be struck out (and that summary judgment ought not be granted against the party advancing it) where it cannot be shown that the claim is bound to fail. In doing so, the court endorsed first-instance authorities permitting a case to proceed to trial when pleaded on an...