Legal Practice Notes

This Practice Note explains the roles performed by bills of quantities (‘ Bo Qs’) under the JCT forms of contract, the matters parties ought to weigh up and the contents of Bo Qs, alongside some hands-on pointers. It concentrates on the 2024 editions of the JCT forms, while noting that comparable provisions appear in earlier versions. The JCT describes Contract Bills (eg in clause 1.1 and the Second Recital, JCT Standard Building Contract With Quantities 2024) as ‘the fully priced bills of quantities referred to in the Second Recital’. In broader terms, Bo Qs are schedules setting out units, quantities, rates and totals for items of work, materials, components and labour, itemised in line with an industry‑recognised standard method of measurement. Typically prepared by the Employer’s consultant, they are derived from the drawings and specifications issued at tender. They accompany the tender so that all...

' Handover' under an EPC contract The notion of ‘handover’ within an EPC contract is of central importance. It identifies the moment when the EPC contractor’s primary obligations conclude and when the contractor’s potential liability for delay damages falls away. It likewise marks the point at which the employer assumes possession of (and typically responsibility for) the site and, in many instances, when the facility can begin commercial operation. Closely connected to handover are the processes of testing and commissioning. Whether such steps are mandated under an EPC agreement will depend heavily on the character of the facility being delivered. Where the facility comprises infrastructure, such as a road or a bridge, detailed testing and commissioning provisions are less likely to be necessary. By contrast, where the works include complex mechanical and electrical systems, testing and commissioning become essential. For power plants and...

What are Category 4 Screening Levels? Category 4 Screening Levels ( C4SL) offer technical direction for environmental consultants and regulators when evaluating land impacted by contamination. By comparing soil contaminant concentrations with C4SL values, a preliminary judgement on risks to human health can be formed. C4SL is integral to the contaminated land regime. Where soil results fall beneath the relevant C4SL thresholds, regulators may decide the site is plainly not contaminated land. These screening benchmarks can also be cited in environmental reports lodged by developers with planning applications. Role of C4SL in the contaminated land regime Local authorities have a statutory obligation under Part IIA of the Environmental Protection Act 1990 to identify and secure remediation of contaminated land within their areas. See Practice Note: Contaminated land—local authority duty to inspect land. Sites should be determined as ‘contaminated land’ if they satisfy the statutory...

What is acceleration? In construction law, acceleration is commonly taken to mean adopting steps to increase the pace of the works so completion occurs sooner than it otherwise would. However, there is no settled legal definition of the term. In Ascon v Alfred Mc Alpine, the court remarked that ‘acceleration’ is often bandied about as if it were a precise term of art, yet nothing persuaded the judge that this was so. The root idea behind the metaphor is, no doubt, that of increasing speed and, in the context of a construction contract, finishing earlier than planned. On that basis, ‘accelerative measures’ are actions taken—assumed to be at increased expense—with a view to achieving that aim and bringing completion forward. The Society of Construction Law’s Delay and Disruption Protocol ( SCL Protocol) describes acceleration as the application of additional resources or...

This Practice Note reviews the ( RIBA SPSC), outlining core provisions and when the RIBA appointment might be used. For information on the earlier 2018 edition, see Practice Note: RIBA Standard Professional Services Contract 2018 for Architectural Services. It forms part of the 2020 suite of RIBA Professional Services Contracts, which include: RIBA Concise Professional Services Contract 2020: Architectural Services RIBA Domestic Professional Services Contract 2020: Architectural Services RIBA Principal Designer Professional Services Contract 2020 RIBA Sub-consultant Professional Services Contract 2020 The parties are the Client and the Architect/ Consultant. For ease, this Practice Note refers to the ‘ Architect’. Suitability The RIBA form of appointment is intended for appointing an architect/consultant by a business client or public authority to deliver architectural services on projects procured through the traditional route (see Practice Note: Traditional procurement of construction contracts). RIBA advises that this...

This Practice Note looks at how variations are dealt with under the NEC Engineering and Construction Contract ( ECC) This Practice Note explains the treatment of variations under the NEC ECC. For a broader overview of variations, see Practice Note: What is a variation on a construction project? It addresses both NEC3 and NEC4 editions and concentrates on changes instructed by the Project Manager where the Contractor bears no blame, for example when the Client requires extra work. For consistency, ‘ Client’ is used throughout as this is the term for the developer/employer in NEC4 contracts (the NEC3 ECC uses ‘ Employer’). The word ‘ Scope’ is likewise adopted, following NEC4 ECC, to denote the document defining and describing the works to be undertaken by the Contractor (called ‘ Works Information’ in NEC3 ECC). For a glossary of NEC...

This Practice Note offers a concise overview of the FIDIC Multilateral Development Bank ( MDB) Harmonised form (often referred to as the Pink Book) 2010. It highlights the main features of the Pink Book and identifies concepts handled or treated differently in the Red Book 1999, on which it is grounded. For a fuller comparison between the Red and the Pink Books, see Practice Note: FIDIC contracts— Red Book (1999 edition) and Pink Book compared. For a detailed primer on the Red Book (1999 edition), see Practice Note: FIDIC contracts—introduction to the Red Book 1999. In December 2017, FIDIC issued new editions of the Red, Yellow and Silver Books. For insight into what exactly changed in those releases, see Practice Note: FIDIC contracts 2017—what’s changed? [ Archived] and, for additional detail on the Red Book 2017 edition, see Practice Note: FIDIC...

Design liability When a party carries ‘design liability’, it accepts legal responsibility for some or all of a construction or engineering project’s design. On most schemes, the design is created and refined by multiple contributors—several consultants, the main contractor and, frequently, certain sub-contractors—each potentially carrying design liability. Those with such liability can be held to differing standards of care: some face an absolute duty to deliver a finished design that is fit for purpose, while others need only demonstrate reasonable skill and care. How design responsibility is distributed varies with the chosen procurement route, and the parties may also expressly adjust the applicable standard of care in the building contract and in consultant appointments. This Practice Note examines the issues around design duties and standards of care in what is often a contentious area between the employer and the...

This Practice Note examines why parties involved in a construction project may enter into an escrow agreement (or escrow deed) to set up an escrow account. It explores the advantages of placing funds into escrow, how an escrow account functions, and the kinds of provisions commonly included in an escrow agreement. A major worry for a contractor or sub‑contractor on a construction scheme is the possibility of not being paid. One practical way to tackle this is for the contractor/sub‑contractor to agree an escrow arrangement with its employer and establish an escrow account. An escrow agreement can be put in place, and an escrow account opened, between a contractor and employer, a contractor and a sub‑contractor, or, more generally, wherever on a project one party must pay another for works or services. For ease, this Practice Note focuses on an...

This Practice Note examines claims brought against professional consultants (often referred to as construction professionals) on building projects, across different procurement routes and delivery models, and the issues that frequently emerge within such claims. It reviews the possible sources of liability, the standard of care owed in delivering services, together with obligations flowing from appointments and instructions, and typical claims/issues concerning designers, contract administration, and supervision/inspection functions and oversight. This Practice Note also flags matters to weigh when assessing quantum and approaches to dispute resolution in the setting of claims against a consultant. Clients usually appoint consultants to advise on different facets of the scheme and/or to see that the contractor finishes the works correctly, on programme, within budget, and aligned with the client’s requirements. In most procurement routes, they are not parties to the building contract or any...

Purpose A notices clause is frequently inserted into a contract to provide both sides with certainty and transparency around formal communications and the sending and receipt of notices between the parties to the agreement, including how they are given and received. Where no such clause appears, default statutory rules may step in (see Statutory provisions below). In the Court of Appeal in Khan v D’ Aubigny, Nugee LJ observed that a notice can be a document that imparts information as well as one that invokes or exercises a right. It is also commonly taken to mean a written notice bearing a degree of formality, though no fixed wording or prescribed format is demanded. Observing the requirements of a notices clause will often be critical across a variety of contractual contexts. By way of illustration, it typically matters when prolonging (or stopping the...

Stop Press On 24 February 2025, the principal provisions of the Public Procurement Act 2023 ( PA 2023) take effect. We are in the process of reviewing and updating our materials. Please note that procurements launched on or after 24 February must be conducted under PA 2023, while those initiated under the previous regime—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be tendered and administered in line with that legislation. For information, see Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. Brexit impact—public procurement The UK public procurement framework originates in EU procurement law and is therefore affected by the UK’s withdrawal from the EU. For general updates on the process and preparations for Brexit, see Practice Note: Brexit timeline. For further...

ARCHIVED: This Practice Note has been archived and is no longer maintained or updated. The Construction ( Design and Management) Regulations 2015, SI 2015/51 ( CDM 2015) set the framework for the management of health, safety and welfare on construction projects in the UK. They supersede the Construction ( Design and Management) Regulations 2007, SI 2007/320 ( CDM 2007). CDM 2015 took effect on 6 April 2015. From that date onwards, CDM 2007 and its associated Approved Code of Practice were no longer in force. On coming into force, CDM 2015 applied to both new and pre-existing projects. However, from 6 April 2015 until 6 October 2015, transitional measures were in place and applied to particular projects already under way; see Practice Note: CDM 2015—transitional provisions [ Archived]. This Practice Note considers in detail how CDM 2015 compares with CDM 2007. For a summary of the...

Following the Grenfell Tower tragedy in June 2017, Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety concluded that a profound change in mindset and practice was required across building safety. In her final report, issued in May 2018, she underlined that the entire system demands a radical overhaul and clarity about how it should operate; the challenge is far more than cladding specifications alone, pointing instead to a sector that has failed to self-scrutinise, learn for itself, or take guidance from other industries. The building safety enquiry culminated in the widely discussed and long-awaited Building Safety Act 2022 ( BSA 2022), which obtained Royal Assent on 28 April 2022. BSA 2022 embodies the step-change in how building safety is addressed and how higher-risk buildings ( HRBs) in England are regulated, answering the call Dame Judith Hackitt set out. At the centre of this...

BSA 2022, Pt 4 The Building Safety Act 2022 ( BSA 2022) delivered far-reaching reforms to the legal framework and regulation of building safety, intended to ‘secure the safety of people in or about buildings and improve the standard of buildings’. Parts 3 and 4 of BSA 2022 establish the architecture for a new regulatory system governing ‘higher-risk buildings’ ( HRBs). Under Pt 3, a strict building control regime was introduced for the design and construction stages of HRBs. Pt 4 imposes duties on those responsible for occupied HRBs, covering risk management and reporting. Collectively, these requirements are known as the ‘ HRB regime’. This Practice Note examines BSA 2022, Pt 4, which sets out the arrangements for managing building safety risks in occupied HRBs in England. BSA 2022, Pt 4 does not extend to HRBs in Wales. For analysis of the Welsh...

ARCHIVED: This Practice Note has been archived and is not maintained. Proposals from the UK and the EU on transitional arrangements for applicable law will be a pivotal concern for UK litigators. This Practice Note examines in detail how Brexit will influence the process of identifying the applicable law once the UK departs the EU. At present, that choice is governed by Regulation ( EC) 593/2008 ( Rome I) and Regulation ( EC) 864/2007 ( Rome II). The Note distils the respective positions of the UK and the EU and assesses the likely potential outcomes as the UK leaves the EU. It also flags issues that may surface on exit and considers potential alternative regimes that could support the determination of the applicable law. Finally, it addresses the drafting of an applicable law clause. Applicable law is sometimes described as the governing law. For...

An assignment is the passing of a right or interest held by one party (the assignor) to another (the assignee), e.g. transferring the employer’s rights under a construction contract to the buyer of the finished works. For this Practice Note, the counterparty to the contract in which rights are being assigned is termed the 'obligor'. For more on what an assignment is, why it occurs in construction, how it functions and the steps required to implement effective assignments, see Practice Note: Assignment in construction contracts. See also Practice Note: Legal and equitable assignment in construction contracts for guidance on the alternative methods by which parties may give effect to an assignment on construction projects (at law or in equity) and the prerequisites for each. Where a construction document, such as a building contract, collateral warranty or consultant appointment, says nothing about...

Arbitration is frequently touted as a more effective, efficient way to settle disputes than going to court. Yet, does that claim hold true? This Practice Note weighs the advantages and drawbacks of choosing arbitration instead of court proceedings to resolve construction disagreements. In particular, it aims to debunk common myths around arbitration and explores the tangible benefits it delivers in reality. Crucially, opting for arbitration does not alter the statutory UK right to refer construction disputes to adjudication. Where a contract includes an arbitration clause and a matter proceeds to adjudication, the right to seek a final determination—displacing the adjudicator’s award—still exists, but it will be pursued through arbitration rather than litigation. Time and cost Arbitration is widely viewed as faster and less costly than court proceedings. However, in some instances arbitrations can in fact take longer and cost more than litigation....

Where do the requirements for air conditioning inspections come from? Part 4 (regs 17–21) of the Energy Performance of Buildings ( England and Wales) Regulations 2012, SI 2012/3118 ( EPC Regulations 2012) specifies the duty to have an air conditioning system inspected by an accredited air conditioning energy assessor. The EPC Regulations 2012 gave effect to the requirements contained in the recast Energy Performance of Buildings Directive 2010/31/ EU (the recast EPBD directive). Before the EPC Regulations 2012, the Energy Performance of Buildings ( Certificates and Inspections) ( England and Wales) Regulations 2007, SI 2007/991 implemented the original Energy Performance of Buildings Directive 2002/91/ EC (the original EPBD directive). The recast EPBD directive was prepared after the European Council determined that clearer, more targeted measures were needed to achieve energy savings in buildings across all Member States; see Practice Note: EU Energy...

Structure Reasons for the developer to form a JV There are several grounds on which a developer may choose to pursue a JV in connection with a development project, such as the following: spreading risk with another party and placing particular specialist risks with the JV participant most suited to manage them, combining specialist knowledge and expertise to marshal resources on a larger scale and for greater returns, gaining access to specific market knowledge from a party with specialist market experience outside the developer’s usual course of business From the developer’s viewpoint, in practice, it should be cautious not to over‑engineer the JV framework if this might fetter the management of the development process—beginning with the acquisition of land at the outset, continuing through the construction phase, and finally when making disposals upon completion. For example, a more...