Contributors
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Hot topics in the construction industry at the moment are legal developments affecting claims, time and cost claims, loss and expense claims, building safety, and health and safety.
We covered all of these in our construction update on 11 March, where our speakers and contributors from Decipher, 4 Pump Court Chambers, and Womble Bond Dickinson highlighted challenges for the industry, and offered practical advice on addressing these.
Simon Rowland, Head of Womble Bond Dickinson's Construction Team, hosted the online conference, and said:
"I'm delighted to have chaired our re:build Britain Construction Update where our highly regarded panel of speakers provided meaningful insights into the key legal and commercial issues facing the sector as we chart a course through these unprecedented waters."
Case(s) in point: legal developments and decisions in 2020
The courts were closed for part of last year but, despite that, important judgments were made.
Jessica Tresham, Partner, and Lisa Dromgoole, Managing Associate, looked at key cases from 2020. Their top tips included:
- follow the contract requirements when issuing notices, and give them in the right order
- if you issue later notices, check whether they invalidate previous notices given
- if there's a bond on a project, make sure you understand the type of bond, how to trigger a claim under it and the time frames for doing so
- be absolutely certain you are entitled to terminate before exercising a termination provision – mistakes can be costly
- be aware of time bars on bringing claims, and bring claims in the right arena (eg adjudication first if the contract says adjudication first)
- keep good and contemporaneous records - if you sign timesheets, be aware this may be used as evidence in later disputes.
After the conference, Jessica said:
"2021 is going to bring a number of changes and challenges not only to the way that building sites operate, but also how disputes are resolved. I look forward to working with our clients and contacts over the year to focus on overcoming these challenges and to a successful and thriving sector".
Time well spent? Some essential tips for dealing with time and cost on construction projects
As we are seeing more disputes relating to time and cost, Paul Gibbons, CEO, and Bill Bordill, Director, from Decipher Group, gave practical examples and tips on how to deal with these "through the lens of an expert".
Paul identified common problems with construction programmes and explained how these can be tackled to ensure that programme entitlement is not lost. His top tips included:
- make sure that programmes are logic linked, show critical path and resource, and are compliant with the contract
- good programming can help you quickly understand whether a delay eats into programme "float" or whether it is a critical path delay
- photographs are helpful evidence of progress, but only if they are given in context eg linked to dates, locations within the project, programmes and progress records
- ideally, factual records should be signed and allocated to programme activities.
Bill looked at “entitlement to recover loss & expense”, explaining the principles behind common heads of claim, and how to prepare for claims. His top tips were:
- make sure your contract uses clear and unambiguous terms, particularly around notices
- particularise your claim – under Walter Lilly v Mackay you should only use global and total cost claims for part of your claim (not the whole claim) and only where necessary
- make sure your cost data is robust, auditable, and accurate
- keep good records – these can be strong evidence where they are contemporaneous
- carry out careful delay analysis – consider cause, effect, entitlement, and substantiation.
Later, he said:
"Many contractors have sought comfort in the obiter comments of Akenhead J (as he was then) in Walter Lilly v Mackay [2012] EWHC. The comments are actually very helpful but alas, often misinterpreted in an effort to submit a weak claim for loss and expense. I hope that my practical tips and simple illustration will benefit all parties, when preparing for claims, both for and against."
Safe as houses? Latest developments in building and site safety
Developments in building and site safety have come thick and fast over the last year.
Simon Lewis, Partner, spoke to attendees about:
- the Building Safety Bill – what we do and don't know so far, including about the new Building Safety Regulator
- the new Construction Products Regulator, announced by the Government this year - the background behind this and what we know about its function
- the Fire Safety Bill – what stage it has reached and changes it will bring
- funding available to remediate unsafe cladding and other relevant funds - and issues to be aware of with these.
Moving on to health and safety, Stephen Panton, Partner, looked at HSE recent cases and enforcement trends, what your health and safety focus should be in the coming months, and the importance of prompt and effective critical incident management. He identified the following as hot topics for enforcement:
- co-operation and co-ordination on site
- hand arm vibration
- falls from height
- musculoskeletal disorders
- employee welfare and worker fatigue.
Panel Q&A session
The previous speakers were joined by Jessica Stephens QC, 4 Pump Court Chambers.
We received several questions during this session - many of these relating to the pandemic.
One that particularly resonated with the audience was a question to Jessica Stephens QC, about the ability to claim for force majeure, and time and money, under the JCT and NEC contracts in light of COVID-19. She gave helpful insights into what each of those contracts said and points to consider outside the contracts - such as when the contracts were signed, and how this could affect your ability to claim for force majeure, time and cost.
To watch a recording of the conference, contact events@wbd-uk.com.
To find out more about delay and disruption, and building safety, please visit our re:build hub.
