Legal Practice Notes

This Practice Note explores the nature of joint names insurance, the differences between joint and composite cover, and the broader implications for construction insurance contracts. It is a frequent stipulation of construction agreements that insurance be placed in joint names, so that one policy extends protection to the interests of all parties involved. Under the umbrella of joint names insurance we mean: joint insurance, and composite insurance (commonly known as co-insurance) Joint insurance—definition Insurance that, through a single policy, secures the identical interests of two or more parties in the insured subject matter—for instance, spouses’ stakes in a matrimonial home. A breach by any one party of the policy terms—such as fraud, non-disclosure, breach of condition or breach of warranty—can impair the other insured’s rights. In joint insurance, each insured’s entitlements stand or fall together; in other words, they hold an...

On most projects, a construction contract assembles a set of documents that, taken together, set out each party’s obligations and liabilities, and define the works plus when, where and how they are to be delivered. These are commonly called the ‘contract documents’. Beyond the conditions of contract, the documents included will depend on the procurement route selected. Typically (using JCT terms for ease), these comprise: employer’s requirements contractor’s proposals a contract sum analysis or (depending on the form of contract) bill of quantities specifications drawings the programme BIM protocol Other ancillary documents may clarify the parties’ responsibilities, for example the tender, minutes of a pre‑contract meeting, or derogations/tender clarifications. Where appropriate, these may appear as separate contract documents or be incorporated within one of the items above. Conditions of contract The conditions of contract commonly adopt, or are based on, an...

Company voluntary arrangement ( CVA) A company voluntary arrangement ( CVA) is a binding contract between a company and its creditors. A CVA proposal must include one or both of the following: paying a lump sum instead of a larger debt or other obligation; and/or providing for less than the full release or discharge of creditors’ debts However, a CVA cannot be used to change the rights of secured creditors, or to alter a preferential creditor’s priority, unless the affected creditors agree. For any CVA put forward within 12 weeks of the end of a moratorium under the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), the holders of any unpaid moratorium debts and priority pre‑moratorium debts effectively have a veto: neither the company nor the creditors may approve the CVA unless those debts are paid in full, unless the creditors consent; CIGA 2020, Sch 3,...

This Practice Note offers a beginner’s overview of construction disputes, intended for trainee solicitors and others unfamiliar with the area. It outlines what a construction disputes lawyer does, the disputes that frequently occur on projects, and gives a primer on adjudication, dispute boards, proceedings in the Technology and Construction Court ( TCC), construction arbitration and alternative dispute resolution ( ADR). It also considers the nature of disputes that routinely emerge on construction projects and the role undertaken by the disputes lawyer. We suggest reading Practice Note: Construction law—new starter guide, which sets out the core principles of construction law and the characteristics of construction projects, before tackling this note. The content of this Practice Note is also available as a Power Point deck with speaker notes—see: Introduction to construction disputes—training materials. You might also consider Practice Note: Dispute...

This Practice Note explores the function and significance of boilerplate clauses within a contract. It highlights the boilerplate provisions most frequently seen in transaction-related agreements and considers the method to adopt when reviewing or drafting agreements that contain boilerplate terms. Solicitors handle an extensive range of transactions, yet every one of them will, in some respect, involve written contracts. Each of those contracts ought to include certain boilerplate provisions. What is boilerplate? There is no universally accepted definition of a ‘boilerplate’ clause. Such clauses are often regarded as standard, catch-all terms. They are routinely accepted with minimal thought or bargaining, but treating them this way is risky. It is better to view ‘boilerplate’ as a label for the clauses inserted to govern the mechanics of how the agreement operates and the legal considerations common to most transactions. They are typically located at the start and the close of an...

Introduction This Practice Note explains the procedure for handling Variations under the 2017 FIDIC Red, Yellow and Silver Books, whether the Engineer or Employer issues a Variation, whether the Engineer or Employer invites a proposal for a Variation, or whether the Contractor originates the Variation (value engineering). For further detail on Variations within the 2017 editions, see Practice Note: FIDIC contracts 2017—variations. Clauses 13.1 to 13.3 primarily control Variations, identifying the entitlement to modify the Works and the process to be applied. In the Red and Yellow Books, the Employer is not authorised to give Variations directly. Instead, the Employer must route any related Variation requests and instructions through......

This Practice Note explores the principal considerations when preparing a settlement agreement: correctly identifying the parties (including any relevant third parties), expressing obligations with clarity and sufficient compulsion (covering time is of the essence and endeavours provisions), drafting the release (the ‘full and final settlement’ estoppel), and incorporating appropriate boilerplate clauses and execution formalities. For guidance on making a settlement offer and deciding how to record it, see Practice Notes: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement Settling at a mediation For Precedent draft settlement agreements, see: Draft Settlement agreement—pre-action settlement Draft Settlement agreement—for settling disputes post-commencement of proceedings For guidance on disputes arising from a settlement agreement, see Practice Note: Resolving disputes concerning settlement agreements. Key requirements—drafting the settlement contract As with any contract, attention should be given to these core...

This Practice Note outlines the nature of waiver and release within commercial contracts, distinguishes between them, and summarises the clauses that address waiver (commonly called a ‘no-waiver’ clause) and release. The waiver clause is widely recognised as a boilerplate provision aimed at preventing unintended waivers of legal rights from taking effect, including the right to terminate after a breach of contract. What does ‘waiver’ mean? In contract law, ‘waiver’ may carry different senses, but most often describes a concession granted by one party whereby it does not demand strict performance by the other of a contractual duty, whether before or after any breach of the term being waived. For discussion of other potential meanings, see: Waiver: Halsbury’s Laws of England [251]. Types of waiver Express Implied from conduct In either case, it must amount to an unequivocal representation arising from a positive and...

What are site waste management plans? Site Waste Management Plans ( SWMPs) were created to bring stronger rigour and openness to tracking waste movements across numerous schemes in the property and construction industry. First adopted as a best practice tool, they later gained effect via the Site Waste Management Plans Regulations 2008 ( SWMP Regulations), SI 2008/314; these were then repealed in 2013 under the Government’s ‘ Red Tape Challenge’, returning SWMPs to a non-statutory status. Despite this, many organisations still operate some form of SWMP, viewing it as an industry norm for the efficient identification, classification and control of wastes (and materials) higher up the waste hierarchy and prior to site works commencing (so that benefits can be realised from design etc to eliminate or plan to re-use wastes). As such, they remain widely referenced as an industry standard for...

Introduction The ABI Model Form of Guarantee Bond first appeared in 1995, with a revision in 2002 to add a reference to the Contracts ( Rights of Third Parties) Act 1999. A copy can be found here: ABI Model Form of Guarantee Bond. An explanatory guide accompanies the form. According to the ABI’s explanatory guide, the Model Form emerged after an extensive consultation with government and local authority advisers, commercial users, bodies from the construction and engineering sectors, leading construction firms and insurers, in order to address the House of Lords’ criticism of outdated bond wordings in the Trafalgar House case. The guide also sets out the objectives of the Model Form in greater depth and includes commentary on the drafting. In essence, the objective was to deliver a concise, short-form conditional bond wording, written in plain, contemporary language, intended to achieve a fair...

This Practice Note examines an adjudicator’s right to be paid their fees and expenses, their authority to decide who bears that cost, the scope to contest the ‘reasonableness’ of an adjudicator’s fees, and what happens if an adjudicator delivers an unenforceable decision (for example, because they have breached principles of natural justice). It also considers who must meet those sums. Ordinarily, on appointment an adjudicator will issue terms and conditions of appointment, setting out how they will be remunerated. Those terms may expressly address circumstances where the adjudication concludes early (for whatever reason) or where the decision is unenforceable. The Practice Note is largely concerned with situations where no terms and conditions are issued, or where they do not deal with the material scenarios, including where such terms are silent on key issues. In particular, it considers the relevant provisions of the Scheme for...

Japanese knotweed locations Japanese knotweed occurs across most of the nation. It thrives even in poor-quality or polluted substrates, colonising fringe patches of wasteland in cities and running beside railway corridors. As the bulk of the plant sits underground, it requires only a tiny patch of exposed soil to send up new shoots. Its ability to exploit neglected margins makes it prevalent in built-up districts. See Practice Note: Japanese knotweed—management. The legal framework While there is no statutory duty to eradicate Japanese knotweed or notify regulators, its spread can give rise to civil and criminal exposure and can negatively influence the value, saleability and insurability of land. Civil liability A neighbour may pursue a common law action against a landlord or tenant where Japanese knotweed interferes with their enjoyment or harms their land. See Practice Note: Private nuisance—general principles. The advance of Japanese knotweed into adjoining land can also...

Implying terms into a contract is a broad and intricate branch of law. At times, a certain provision is read into every agreement of a given class, whether arising from statute or the common law. In other situations, implied provisions supply language absent from the written bargain by reference to what the parties originally meant on formation, so the arrangement functions as intended. This Practice Note considers implied provisions in construction contracts—for fuller discussion of implied terms in general, and the distinction between terms and representations, see Practice Note: Contract interpretation—express terms in contracts. What are implied terms? An implied term is a provision not expressly settled between the parties and so not recorded in the contract. It will be read into the agreement for a range of reasons and in a variety of circumstances—for example, where it is necessary to give the contract...

This Practice Note This Practice Note sets out the key considerations when selecting an appropriate procurement route for a construction scheme. It examines time constraints, the nature and scope of the works, quality control, and the need for cost certainty. Time available before commencement and the overall programme length Characteristics and extent of the works Approach to maintaining quality Level of price certainty required In some instances, external influences determine the procurement route or the form of contract, such as funding requirements or a developer’s policy of always using the same approach. Alternatively, an architect may have identified a preferred method in light of a project’s character and complexity. Where a selection is still open, the decision should be taken carefully, with due regard to all relevant factors. It should also be recognised that the form of contract cannot be...

The Infrastructure Conditions of Contract ( ICC) The Infrastructure Conditions of Contract ( ICC) were previously known as the ICE ( Institution of Civil Engineers) conditions of contract, first issued by the ICE in 1945. In November 2014 a fresh edition arrived, titled the ‘with quantities’ version (‘ ICC with Quants’). This followed an extensive overhaul of the form and a consultation exercise, prompted by the need to modernise a contract that had seen little substantive change for more than half a century. The 2014 edition was wholly re-written and adopted a bold new drafting philosophy. It is briefer and clearer than the earlier ICE/ ICC contracts, and brought in a number of notable reforms. Chief among these is the provision that lump sum pricing becomes the default valuation method, while re-measurement remains available as an alternative. Although labelled the ‘ With...

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 revising our content accordingly. Please note that procurements launched on or after 24 February must proceed under PA 2023, while those commenced under the earlier 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 conducted and managed under that legislation. For background reading and context, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Framework agreements are employed to procure construction projects across both public and private sectors. They are, however, far more common in the public sector, where they are governed by the public procurement rules. This Practice Note explores the...

This Practice Note discusses the following topics: the scope for parties to advance fraud allegations during an adjudication the situations in which fraud allegations may allow a party to resist enforcement of adjudication decisions fraud occurring within the adjudication process itself Distinct rules govern fraud allegations made in, or connected with, adjudication, and when such allegations may allow the losing party to contend that the adjudicator’s decision is not enforceable. Fraud as a defence in the adjudication itself Where a party knows the facts capable of undermining evidence or argument while the adjudication is underway, it can—and should—raise them in that forum. Fraud may operate as a defence in adjudication just as it does in court or arbitration: it requires clear, unmistakable evidence to support it in the same manner, and must be proved with sufficient clarity—in light of the...

This Practice Note explores how adjudication awards are enforced in Scotland, together with the procedural questions that most often arise. Why enforcement is necessary Under the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), a properly reached adjudicator’s decision is binding and capable of enforcement until the dispute is finally determined (see Practice Note: Adjudication decision). Yet an adjudicator’s award is not a court judgment; therefore, if the losing party does not comply with any element of it, it cannot be enforced in the same manner. To secure compliance in Scotland, the successful party must raise enforcement proceedings in the Court of Session or the Sheriff Court to obtain a court decree reflecting the adjudicator’s decision, which decree can then be enforced. Within Scottish litigation, the party initiating enforcement is the ‘pursuer’ (ie claimant), and the opponent is the ‘defender’ (ie...

Determining who holds intellectual property in the designs, drawings, specifications and similar materials created for a construction project is vital for all participants involved in the process. The copyright owner of the designs produced will wish to safeguard their rights, limit how and to what extent others may use them, and secure recourse and remedies where infringements occur. Conversely, parties that must reproduce or rely on the designs need to ensure they possess sufficient rights and permissions to permit such use. In the construction sphere, designs are commonly prepared by the architect, civil and M& E engineers, as well as by the contractor itself and its subcontractors. Consequently, clauses addressing copyright ownership are a standard fixture of professional appointments, building contracts and collateral warranties used on such projects. This Practice Note concentrates specifically on such provisions within a...

This Practice Note reviews changes under the 1999 editions of the Red, Yellow and Silver Books, alongside the Gold Book 2008 and the Pink Book 2010. For detail on changes under the 2017 editions of the Red, Yellow and Silver Books, see Practice Note: FIDIC contracts 2017—variations. Introduction Across all FIDIC forms of contract, the employer may instruct alterations to the works at any time before the Taking- Over Certificate is issued (the Commissioning Certificate under the Gold Book) without needing the contractor’s consent. Nevertheless, issuing a change may give the contractor an entitlement to extra payment and an extension of time within which to finish the altered works. In each FIDIC form, such changes are principally addressed by clauses 13.1 to 13.3, which set out the right to vary the works and the steps to be followed. What is a...