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Introduction to statutory interpretation The aim of statutory interpretation is to determine the legal meaning of a statute, that is, the sense that expresses the legislator’s intention. The clearest guide to that intention is the statutory wording itself, read in its context and with its overall purpose in mind, and its broader legislative setting. Courts should seek to fulfil the purpose of legislation by construing its language, so far as they can, in the manner that most effectively serves that purpose. Put differently, the courts’ default method is purposive, and every enactment is to be construed with that end in view. There is a starting presumption that the grammatical and ordinary sense of an enactment reflects the meaning intended by the legislator. Where an enactment reasonably bears only a single meaning, and no other interpretative tools or
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 (TrA 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed
Definition of ADR Alternative dispute resolution (ADR) is defined in the CPR Glossary as a collective label for methods of settling disputes other than through the usual trial process. Some courts adopt the term ‘negotiated dispute resolution’ (NDR) to describe resolution by alternative means; for ease, this Practice Note uses ADR. For guidance on how ADR is addressed in the various court guides, see Practice Note: ADR and NDR in the court guides. In essence, ADR is a means of resolving a dispute outside the court system. It typically involves a neutral third party who either helps the parties reach a negotiated outcome, or issues a determination of the dispute that is legally binding. A binding result can follow where the agreement to refer the dispute to ADR so provides. There are multiple forms of ADR processes. For an outline of the different types and their
In brief The British constitution is uncodified, meaning it does not spring from a single constitutional document or code. It draws on a wide range of written and unwritten sources. Alongside the principal written sources of law in England and Wales—legislation (which has also introduced international and human rights principles into our constitution) and the common law—the constitution also rests on two further unwritten bases within this system: the prerogative, and non-legal constitutional conventions. In addition, on one view the basic or prevailing principle of our constitution, Parliamentary sovereignty, is ultimately grounded in political fact rather than in law. Legislation Legislation is the foremost source of constitutional law. Acts of Parliament may set out detailed constitutional rules, or even pass authority to create them to ministers or to others. Under the doctrine of Parliamentary sovereignty, legislation is traditionally regarded as taking precedence over any other form or kind of
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Under the Construction ( Design and Management) Regulations 2015 (the ‘ Regulations’), creating the construction phase plan (the ‘ Plan’) is a core obligation of the principal contractor (for details of that role, refer to Practice Note: CDM Regulations 2015—the role of the contractor and principal contractor). A Plan is mandatory on every scheme. On jobs with a single contractor, that contractor must see that the Plan is produced. Together with the ‘health and safety file’ (the ‘ File’), the purpose of the Plan is to secure, so far as is reasonably practicable, the health and safety of those carrying out the works and anyone else impacted by the activity during the construction phase (see Practice Note: CDM Regulations 2015—the health and safety file). Why prepare a Construction Phase Plan? The principal contractor is required to draft, review, revise and put the Plan into effect so that it...
On most building schemes, the main contractor assumes control of the site from the date of possession and keeps that responsibility until practical completion. Under JCT Insurance Option A, for instance, the main contractor must maintain a joint insurance policy right up to the issue of the practical completion certificate (see Practice Note: JCT contracts—insurance)... The importance of CDM The UK construction sector employs over two million people—more than 6% of the national workforce—yet, despite significant advances in culture, procedures and risk management, it remains among the most hazardous industries, with around 40–50 on‑site fatalities each year. The industry has operated under Construction ( Design and Management) Regulations since 1994, with three sets of CDM Regulations introduced in that period. The 2015 version arose partly from a push towards de‑regulation, partly because the 1994 regime did not accurately transpose the EU Temporary or Mobile...
Historic Government initiatives Lengthy contractual payment terms and late payment have long been recognised as a persistent issue within the construction sector. When a customer (for example, a main contractor) fails to pay a supplier (for example, a sub‑contractor) promptly, the consequences for the supplier can be severe—disrupted cash flow may force the supplier to incur borrowing costs to bridge the period of non‑payment, access to affordable finance may become more difficult generally, the supplier may face disputes within its own supply chain if it cannot pay on time, and, in the worst case, insolvency may follow. To tackle these difficulties in the public sector, the Office of Government Commerce ( OGC), as it was then known, issued its ‘ Guide to best “ Fair Payment” practices—construction procurement’ in 2007. The guidance set out recommended fair payment principles and practices and applied to public sector works...
Managing contaminated land liabilities is an important consideration in construction projects Liabilities for land contamination commonly emerge within the planning framework and the contaminated land regime contained in Part IIA of the Environmental Protection Act 1990 ( EPA 1990). Remediation via the planning route: across England and Wales, most contamination matters are addressed through the planning system. To make sure a site is fit for its proposed use, and to avoid unacceptable pollution risk, the effects of contamination on a scheme should be examined through planning so far as they are not dealt with by other regimes, including the EPA 1990, Pt IIA, the Building Regulations and environmental permits (see: Environmental permits and exemptions—overview). Before permission is issued, the developer together with an environmental consultant ought to evaluate the potential contamination risks. Applicants are advised to liaise early with the local planning...
Principles governing the interpretation of Wills have evolved over many years, and rules on construing dispositions were historically muddled by differing treatment of personalty and realty. The Administration of Justice Act 1982 ( AJA 1982) altered this. In Marley v Rawlings, the court confirmed the modern method: determine the testator’s intention from the language used. Although the previous canons are no longer as conclusive as they once were, many remain a useful starting point. In light of the caselaw, practitioners should rely on well-used Will precedents and avoid straying from them without careful thought. References to property in a Will speak from the date of death A reference to real and/or personal property (for a discussion of real and personal estate, see Practice Note: Devolution of assets and the need for a grant) in a Will is taken to speak from the date of death, that is, as...
This Practice Note This Practice Note sets out how post-termination restrictions (restrictive covenants) should be construed. It addresses timing, the need for exactness and clarity, giving words their ordinary, natural sense, the weight of context and the parties’ intentions (a purposive reading), and the contra proferentem principle. It also considers when the corporate veil might be lifted, whether a clause will be re-written, and severance. The construction of post-termination restrictions follows the general rules used for any contractual term. The baseline is that a restraint of trade is usually unlawful, and such a restriction will only be reasonable, and lawful, if it goes no further than is strictly required to protect an employer’s legitimate business interests (see Practice Notes: Restraint of trade in employment and Legitimate business interest). Accordingly, restrictions should be tailored to the employer’s particular business and the employee’s duties, and...
This Practice Note sets out what construction management is, outlines the benefits and drawbacks of this procurement approach, and clarifies the participants’ responsibilities. At present, the traditional route and the design and build route are the predominant procurement choices in the UK construction sector (see Practice Notes: Traditional procurement of construction contracts and Design and build procurement). Management procurement now has a smaller share, though that has not always been so. In the late 1980s and early 1990s, it was the preferred option for many large commercial schemes delivered then. The balance may yet tip back in that direction. Its two chief forms are management contracting and construction management (see also Practice Note Management contracting). These themes are explored throughout this Practice Note for further clarity and context. What is construction management? Under construction management, the client appoints a consultant team to design the scheme in the...
This training pack includes sample Power Point decks with supporting notes, intended for trainers delivering an overview of letters of intent to trainee solicitors and other newcomers to construction. Covered themes include what letters of intent are and the circumstances in which they are used; the legal and commercial risks to watch for when relying on letters of intent; guidance on drafting them; and possible substitutes for a letter of intent. The materials are available in both Power Point and Word formats and are fully customisable in every respect as required by trainers......
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z M& E Abbreviation for mechanical and electrical. Main contractor On a project where some work is sub-contracted, the main contractor (also called the head or lead contractor) is the party that enters into a contract with the employer and is ultimately accountable for delivering the works. The main contractor may then sub-contract part or all of the works to its sub-contractors. Maintenance period The period following practical completion during which the contractor is required to return to site to make good any defects that occur or are identified during that time......
ARCHIVED: This Practice Note has been archived and is not maintained. The Construction law case tracker brings together significant judgments from 2021, 2022 and 2023 of interest to construction lawyers, presented with the most recent first. For earlier material, refer to the 2020, 2019, 2018, 2017, 2016 and 2015 archives. Public procurement decisions are captured in the UK public procurement case tracker and the EU public procurement case tracker. Notable forthcoming appeal matters appear in the Construction horizon scanner ( Appeal cases). Judgment date • Case • Topic • News • Analysis • Summary 15 December 2023 — Jenni Glover & Littleton Glover v Fluid Structural Engineers and Technical Designers Ltd [2023] EWHC 3219 ( TCC) — Consultant appointments; Payment — Court reviews engineers’ scope of duty and potential liability to return fees ( Glover v Fluid Structural Engineers). The TCC declined to strike out a claim...
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z Unforeseen ground conditions Subsurface or site conditions that could affect the works (whether on cost, timing, or programme) and were neither identified nor expected when the contract was made and agreed. They may require a change to how the works are undertaken and sequenced, call for remediation, or otherwise cause delay or disruption to the completion of the works. Unliquidated damages An alternative term for general damages. Such damages seek to return the wronged party to the position it would have been in had the breach of contract not occurred......
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z LADs Refer to Liquidated and ascertained damages ( LADs or LDs). Late Payment of Commercial Debts ( Interest) Act 1999 The Late Payment of Commercial Debts ( Interest) Act 1999 grants a statutory right to recover interest on overdue sums. See Practice Notes: Remedies for non-payment under construction contracts and Late Payment of Commercial Debts ( Interest) Act 1998. Latent defects Flaws inherent in a property’s design or construction that are not evident upon inspection. See Practice Note: Latent defects. Latent defects insurance Cover that insures against damage to a property arising from latent defects which emerge during the policy term. Such insurance typically runs for 10 or 12 years from practical completion and is arranged on payment of a single premium......
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z JCT contracts The leading standard form of building contracts, which are issued by the Joint Contracts Tribunal ( JCT). For further information, see the Practice Note: JCT contracts. Joint Contracts Tribunal ( JCT) Industry organisation with representatives from all parts of the construction sector......
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z GC Works A suite of construction contracts produced by the government (by what was then the Department of the Environment, Transport and the Regions) for building and engineering projects in the public sector. They are no longer updated. General requirements An alternative name for project overhead costs, ie essential expenses incurred during the project that are not directly connected to construction activity (for example, the hire and rental of contractor's premises and general support and supervisory staff costs)......
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z Off-site construction A project delivery method in which a portion of construction work is undertaken in factory conditions and then transported to the site later on. It commonly involves fabricating modules that are also subsequently assembled on site. See also News Analysis: Off-site construction—the legal implications and Practice Note: Modern Methods of Construction. O& M manuals See Operation and maintenance manuals below. On default bond A conditional bond that is callable upon the contractor’s default......
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z Back end Contentious, disputes‑focussed legal services, for instance representing a party in litigation... Benchmarking A method for assessing whether service quality and pricing align with prevailing market levels (where they exist) without running a formal competition. It can also be applied to track improvement or evaluate performance... Best value The obligation on every local authority to arrange for continual improvement in how its functions are carried out, having regard to economy, efficiency and effectiveness ( Local Government Act 1999, s 3). This entails considering costs, securing value for money, and ensuring services reflect community needs and the authority’s priorities. See Practice Note: Best value in public procurement... Bid bond Also called a tender bond (or guarantee). Used within the tender process to secure...
These training resources comprise Power Point slide templates with accompanying notes for trainers delivering an overview of construction law to trainee solicitors and other newcomers to construction. Subjects addressed span the framework and timetable of construction projects, legislation pertinent to construction lawyers, a primer on building contracts, consultant appointments, collateral warranties and third-party rights, construction disputes, and terminology used by construction lawyers. The materials are offered in both Power Point and Word formats and are fully customisable. Click the link below to download the presentation: Contents What do construction lawyers do? Construction projects parties structure timeline Legislation (the ‘ Construction Act’ and other legislation) Construction documents ...
ARCHIVED This Practice Note is archived and no longer updated. The Construction horizon scanner showcases key forthcoming developments for construction lawyers; when a development materialises, it is placed in the archive for the appropriate year. This page collects events that happened in 2017. For case law, refer to: Construction case tracker—2017 [ Archived]. Legislation Tax: Outcome of consultation on supply chain fraud — 22 November 2017. HMRC consulted from 20 March to 9 June 2017 on measures to tackle supply‑chain fraud involving labour provision in the construction industry. In the Autumn Budget 2017 (see below), the government announced a VAT domestic reverse charge aimed at preventing VAT losses. See News Analysis: Fraud on provision of labour in construction sector—consultation on VAT and other policy options. Payment reporting: First deadline to report on payment practices — 4 November 2017 (for...
The Construction case tracker compiles notable 2021 and 2022 judgments of interest to construction lawyers, arranged with the newest first. For earlier decisions, refer to the 2020, 2019, 2018, 2017, 2016 and 2015 archives. Public procurement rulings appear in the UK public procurement case tracker and the EU public procurement case tracker. Key forthcoming appeals are highlighted in the Construction horizon scanner ( Appeal cases). Judgment date Case Topic News Analysis Summary 18 Feb 2022 — Struthers v Davies (trading as ‘ Alastair Davies Building’) and another [2022] EWHC 333 — Defects; Termination; Contract law — Homeowners succeed in defects claim against contractor ( Struthers v Davies). The TCC held the defendant contractor was in repudiatory breach, awarding the claimant homeowners damages for defective workmanship and losses arising from termination. The court dismissed the contractor’s contentions that the termination was invalid and that...
ARCHIVED This Practice Note is archived and no longer updated. The Construction case tracker sets out significant 2019 judgments of relevance to construction lawyers, arranged in reverse chronological order. See also: Construction law case tracker Construction case tracker—2020 [ Archived] Construction case tracker—2018 [ Archived] Construction case tracker—2017 [ Archived] Construction case tracker—2016 [ Archived] Construction case tracker—2015 [ Archived] Public procurement decisions appear in the UK public procurement case tracker and the EU public procurement case tracker. Notable forthcoming appeals are listed in the Construction horizon scanner ( Appeal cases). December 2019 27 Dec 2019 — Babcock Marine v HS Barrier Coatings Limited [2019] CSOH 110 — Adjudication — Scottish court declines to enforce adjudication decision owing to undisclosed assistance of a QS ( Babcock Marine v HS Barrier Coatings). The Court of Session, Outer House, refused...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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