Construction

Recent Articles

•  

  24/04/2024

  United Kingdom

  Challenging conclusivity and “playing for time” under the JCT final account process

  A recent TCC decision has considered the final account conclusivity provisions of the JCT form and the circumstances in which an adjudication commenced to preserve a challenge to the final account can be re-commenced without triggering conclusivity and losing the right to challenge the final account. In this case, the adjudication was re-commenced four months after it had initially lapsed, but was found not to have triggered conclusivity. The court’s judgment raises the prospect of parties “playing for time” by commencing adjudications and allowing them to lapse, however drafting...

  Read more
•  

  22/04/2024

  United Kingdom

  When does the right to request a collateral warranty become time-barred?

  A recent decision of the Court of Session appears to be the first case in England or Scotland to consider when a right to request the delivery of a collateral warranty becomes time-barred. The Court found that the relevant prescription period started with the execution of the underlying contract, rather than the date on which the warranty was requested. This meant the right to receive a warranty became barred prior to the point at which rights under the warranty, had it been granted, would have prescribed. The gap between these two dates may be many years for large projects and may affect the package...

  Read more
•  

  16/04/2024

  United Kingdom

  To decide or not to decide: burden of proof findings and subsequent adjudications

  A recent decision of the Scottish Court of Session has considered whether the failure to prove a delay damages claim in one adjudication prevented the claimant from renewing the claim in a subsequent adjudication. In finding that the claim could not be re-adjudicated, the Court sought to distinguish a previous TCC decision in England where a failure of proof did not prevent a subsequent adjudication on the same claim. The Court’s comments suggest that adjudicators might have the ability to avoid deciding a claim where burden of proof issues exist, effectively reserving the claim for a subsequent...

  Read more
•  

  04/04/2024

  United Kingdom

  Is notification of loss and expense under the JCT a condition precedent?

  A recent decision of the Scottish Court of Session has considered whether the notification of a claim for loss and expense is a condition precedent under the 2016 edition of the JCT form. The wording of the loss and expense clause in the 2016 edition had changed from the 2011 edition and the Court’s upholding of a condition precedent provides important guidance on the new wording. A failure to adhere to the notification requirements can, as in this case, result in a contractor losing valuable rights to recover loss and expense, particularly where common law rights have been excluded.FES Ltd...

  Read more
•  

  19/03/2024

  United Kingdom

  The validity of complex adjudicator nomination procedures under the Construction Act

  A recent TCC decision has considered the validity of a complex contractual adjudication procedure requiring nomination from a panel of adjudicators. The fact that the procedure had the potential to run beyond 7 days from the date of the adjudication notice did not result in its invalidity. The Court’s decision will be of importance to those drafting adjudication clauses and parties subject clauses with complex nomination provisions. Similar panel-based nomination procedures are very common in PFI contracts. The Court’s decision also makes important findings as to other issues arising...

  Read more
•  

  11/03/2024

  United Kingdom

  Welcome amendment to the Construction Industry Scheme regulations as they relate to payments between landlord and tenants

  At the Autumn Statement 2023, the government announced amendments to the Income Tax (Construction Industry Scheme) Regulations 2005 (the Regulations), including removing certain payments between landlord and tenants from the scope of the Construction Industry Scheme (the CIS).Those amendments will come into force on 6 April 2024, having been laid before the House of Commons on 8 March 2024.What was the concern?The CIS was originally introduced to protect revenue in relation to the construction sector, with significant non-compliance suspected as a result of cash-in-hand payments. The CIS requires...

  Read more