October 31, 2019

Fenwick Elliott Annual Review 2019/2020

Welcome to the 23rd edition of our Annual Review. As always, our Review contains a round-up of some of the most important developments from the past 12 months including, from page 44, our customary summaries of some of the key legal cases and issues, taken from both our monthly newsletter Dispatch as well as the Construction Industry Law Letter.

This year’s Review reflects the typically diverse range of issues we have found ourselves looking at over the past year. Increasingly this includes digital technology and the wide-ranging benefits it offers to the construction and legal industries. On pages 8-9 Stephanie Panzic looks at the use of drones, whilst on pages 6-7, Mark Pantry reviews the new practice note which provides guidance on using JCT contracts on projects where BIM is to be used.

Continuing with the JCT theme, on page 40, Jatinder Garcha discusses responsibility for compliance with statutory requirements.

Of course, even when using the new technologies you need to ensure that your contract is properly in place first, something Lucinda Robinson discusses on pages 4-5. And if you want to know more about implications of indemnities which are often the subject of much discussion during the pre-contract negotiations stage then Edward Colclough explains more on pages 41-43.

Simon in his introduction mentioned the latest developments in our Dubai office. Ahmed Ibrahim on pages 32-33 writes about multi-tiered dispute resolution clauses in the UAE, whilst James Cameron discusses the new Arbitration Law, Shariah principles and enforcement of awards in the Kingdom of Saudi Arabia on pages 30-31. 

It is interesting to see the increased emphasis globally on dispute avoidance and with this in mind, on pages 27-29, Sana Mahmud, looks at the Singapore Mediation Convention which was created with the aim of raising the profile of the mediation in cross-border disputes.

When disputes do arise, the question of whether or not a party has complied with the notice provisions of the contract often becomes a keenly fought part of the process. As I discuss at pages 34-36, there have been a number of cases  both at home and abroad recently where the courts have, with some reluctance it must be said, applied the strict notice requirements of the contract. 

You also may need to serve a notice if a force majeure situation arises on your project. Ben Smith, at pages 37-39, provides some practical advice on what these clauses actually are all about.  With international projects and arbitration in mind, Harrison Small on pages 25-26 looks at the potential liability of parent companies for the actions of foreign subsidiaries

In the UK, whilst the Grove case has settled which means that the Supreme Court will not get the chance to comment upon “smash and grab” claims, the widespread use of adjudication continues. On pages 19-20, George Boddy discusses two English cases where the courts have been asked to cut down decisions made by adjudicators, whilst on pages 21-22 Ciaran Williams explains the approach to enforcing an adjudicator’s decision in Northern Ireland.

This year there have been a number of cases in the courts looking at issues arising out of completion. On pages 10-11, Jesse Way looks at the meaning of practical completion, whilst on pages 12-13, Martin Ewen discusses whether milestone payments are a sufficient mechanism for payment to comply with the Housing Grants Act and payment legislation. In addition, as Marc Wilkins explains on pages 14-16, the courts have also been looking at whether liquidated (or delay) damages clauses survive termination. 

You may also recall that the Aldous Bill, which proposed a number of changes to the way retentions are dealt with was introduced to Parliament back in January 2018. It now appears to have fallen by the wayside, as it was not carried over to the new session of Parliament - a victim of the amount of debating time taken up by Brexit. On pages 17-18, Adele Parsons asks whether it is now time to release retentions as we have come to know them.

Less predictably, there were also a couple of cases this year where the question of the potential liability of approved inspectors,  (private individuals or organisations that are appointed on construction projects by the client to verify that the construction work complies with Building Regulations) was explored. On pages 23-24 James Mullen explains more. 

If you want to know more, our website keeps track of our latest legal updates or you can follow us on Twitter or LinkedIn. As always, I’d welcome any comments you may have on this year’s Review: just send me a message, my contact details are below:

Email jgloverfenwickelliott.com or on 
Twitter @jeremyrglover.

Annual Review articles

Completing the contract first: does it matter?

Working with BIM and JCT contracts

Drones: things to think about before taking flight

Material breach of contract and practical completion

Are milestone payments a sufficient mechanism for payment in construction contracts?

Will your LADs survive termination?

Is it time to release retention as we know it?

Taking a knife to adjudicators' decisions

Enforcing an adjudicator’s decision in Northern Ireland

Liability of approved inspectors

Duty of care – parent company liability for actions of foreign subsidiaries

The Singapore Mediation Convention: raising the profile of mediation in cross-border disputes

Arbitration in the Kingdom of Saudi Arabia: the New Arbitration Law, shariah principles and enforcement of awards in the Kingdom

Multi-tiered dispute resolution clauses in the UAE

Notices: another year, yet more cautionary tales

Recent developments in Force Majeure

JCT Design and Build contracts and statutory requirements - a trap for contractors?

The use (and misuse) of indemnities in construction contracts

Other Annual Reviews