CES - Construction Law Review 2016

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Chartered Institution of Civil Engineering Surveyors 20th Anniversary Issue CONSTRUCTION LAW REVIEW 2016... Read more
BMW Goodwood Festival of Speed Sculpture Centrepiece 2016 Sculptor: Gerry Judah Structural Engineers: DIALES Technical Winners of the AI Magazine 2016 Dispute Resolution Awards for ‘Best for Engineeri... Read more
Published by the Chartered Institution of Civil Engineering Surveyors. Statements made and opinions expressed in this publication do not necessarily reflect the views of the institution, its Council o... Read more
4 Foreword Construction Law Review A celebratory issue 20 years of the Construction Law Review David Loosemore, President, Chartered Institution of Civil Engineering Surveyors I T’S been 20 years sinc... Read more
2016 Foreword 5 Does construction law matter?Julian Bailey, Partner, White & Case, and Chair, Society of Construction Law D OES construction law matter? Anyone who reads the articles in this Construct... Read more
www.keatingchambers.com | +44 (0)20 7544 2600 | clerks@keatingchambers.com Keating Chambers, 15 Essex Street, London, WC2R 3AA, United Kingdom Follow us: @keatingchambers Specialist Advocates to t... Read more
2016 20 Years 7 Civil litigation: 20 years on Alexander Nissen QC, Barrister, Keating Chambers A look at two decades of construction law W RITING in the very first volume of this journal, published i... Read more
8 20 Years Construction Law Review of costs budgets and, when assessing costs at the conclusion of the litigation, it will not depart from the budgeted figures unless there is good reason to do so. Fa... Read more
2016 20 Years 9 for the users of the Rolls Building (which the TCC shares with the Commercial Court and Chancery Division) so as to create a new Business Court with ticketed judges for particular type... Read more
Accelerated Membership for RICS Fellows and Members Is the focus of your work in the civil engineering or geospatial industries?Join the chartered professional body that specialises in these sectors —... Read more
2016 AI 11 􀀨􀁙􀁛􀁐􀃄􀁊􀁐􀁈􀁓􀀃􀁐􀁕􀁛􀁌􀁓􀁓􀁐􀁎􀁌􀁕􀁊􀁌􀀃􀁈􀁕􀁋􀀃􀁓􀁈􀁞Simon Tolson, Senior Partner, Fenwick Elliott LLP Finding the legal profession of this millennium C OMPUTER use and digital datab... Read more
12 AI Construction Law Review Watson2 and Richard and Daniel Susskind’s latest book, The Future of the Professions, which predict an internet society with greater virtual interaction with professional... Read more
2016 AI 13 aid the best selection of materials and/or provide the opportunity of testing and assessing different design alternatives that may impact say on the energy performance of buildings. I know ... Read more
14 AI Construction Law Review Lord Neuberger said that the “earlier and more effectively” potential professional lawyers and advocates could be trained to “appreciate and understand the importance and... Read more
2016 AI 15 Responding to the technological realities of the 21st century is an imperative. A child suddenly runs into the road and the car has to choose; hit the child or swerve into an oncoming truck... Read more
16 Expert Witness Construction Law Review The frustration this causes is exacerbated by the poor quality and hired gun nature of much of the expert evidence presented in international arbitrations. Co... Read more
2016 Expert Witness 17 any of these fields, but was actually a forensic geologist. On the detail of his investigations, he admitted to the following failings: • He had not done his testing with any l... Read more
18 Ground Conditions Construction Law Review Foreseeing the unforeseeable David Carrick FCInstCES FICE FCIArb MRICS MCIPS MBAE, Senior Vice President, Hill International The case of Obrascon Huarte La... Read more
􀁴􀅝􀆚􀅚􀀃􀏰􀍕6 􀏬􀏬􀀃􀆐􀆚􀄂􀄨􀄨􀀃􀇁􀅽􀆌􀅯􀄚􀇁􀅝􀄚􀄞􀍕􀀃􀄐􀅽􀅶􀆚􀆌􀄂􀄐􀆚􀅽􀆌􀆐􀍕􀀃􀅽􀇁􀅶􀄞􀆌􀆐􀍕􀀃􀆐􀅽􀅯􀅝􀄐􀅝􀆚􀅽􀆌􀆐􀍕􀀃􀄨􀅝􀅶􀄂􀅶􀄐􀅝􀄞􀆌􀆐􀀃􀄂􀅶􀄚􀀃􀅝􀅶􀆐􀆵􀆌􀄂􀅶􀄐􀄞􀀃􀄐􀅽􀅵􀆉􀄂􀅶􀅝􀄞􀆐􀀃􀄂􀅯􀅯􀀃... Read more
20 Ground Conditions Construction Law Review The main areas of dispute Gibraltar entered into contract with Obrascon Huarte Lain SA (OHL) under a FIDIC Yellow Book design and construct contract. It al... Read more
2016 Ground Conditions 21 contractor all such data which come into the employer’s possession after the base date. The contractor shall be responsible for interpreting all such data. To the extent whic... Read more
22 Ground Conditions Construction Law Review And the relevant part of the first instance judgment:4 “The problem here for tendering contractors is and was the foreseeable uncertainty of precisely what... Read more
2016 Ground Conditions 23 NEC The application of this case to NEC is, in my humble opinion, difficult. The recovery of direct cost via a re-measured bill of quantities depends on the main option choic... Read more
The Chartered Institution of Civil Engineering Surveyors is a registered educational charity.Contact: ICES Publishing Chartered Institution of Civil Engineering Surveyors +44 (0)161 972 3110 mmhw@cice... Read more
2016 FIDIC 25 Employer’s claims under FIDIC Jonathan Hosie, Partner, Construction & Engineering Group, Mayer Brown International Two recent decisions on the administration of employer’s claims T HE In... Read more
26 FIDIC Construction Law Review The interesting point to note here is the contrast with the requirements for the giving of notice required from the contractor when giving notice of its claims against... Read more
2016 FIDIC 27 that it does not justify any payment or is worth materially less than the unit rate or lump sum price in the contract. The case was remitted to the arbitrator to disallow sums which (i) ... Read more
28 FIDIC/Adverse Weather Construction Law Review form was “only context and by no means determinative” but it was nevertheless “relevant background” which the court was entitled to take into account i... Read more
2016 Adverse Weather 29 Contract Extension of Time Clause Wording / Definition Notice Comments JCT Yes (relevant event)Standard: 2.29.9 Design & Build: 2.26.8 Intermediate: 2.20.8 Major Project Constr... Read more
30 Payment Construction Law Review 􀀪􀁓􀁖􀁚􀁐􀁕􀁎􀀃􀁛􀁏􀁌􀀃􀃅􀁖􀁖􀁋􀁎􀁈􀁛􀁌􀁚The effect of the payment provisions under LDEDCA 2009 Peter Barnes FCIArb FCIOB MCInstCES MICE MRICS, Director, Blue Sky A... Read more
2016 Payment 31 right time, with an amount due being shown (without being overly concerned with its content), and one that could be construed as being a default payment notice. If no pay less notice w... Read more
32 Payment Construction Law Review And others...Following on from the above, the Severfield (UK) Ltd v Duro Felguera UK Ltd (2015) EWHC 3352 (TCC) case made it clear that a default payment notice need... Read more
2016 Extensions of Time 33 Proving extension of time claims Manoj Bahl CEng MICE, Senior Director, FTI Consulting What are the key parameters for determining extensions of time and what is the level o... Read more
34 Extensions of Time Construction Law Review likely to cause, or indeed has caused, a delay to progress of the works, and consequently has impacted upon the completion date. The burden of proof in re... Read more
2016 Extensions of Time 35 subjectivity of this process and set out the following criteria to be adopted in calculating a ‘fair and reasonable’ award: • Application of the rules of the contract. • Rec... Read more
36 Payment Construction Law Review Fixed payment schedules: Grove v Balfour Beatty Alan Williamson FCInstCES, Principal Consultant, Schofield Lothian 􀀨􀀃􀁓􀁖􀁖􀁒􀀃􀁈􀁛􀀃􀁊􀁖􀁕􀁛􀁙􀁈􀁊􀁛􀀃􀁚􀁗􀁌􀁊􀁐􀃄... Read more
Schofield Lothian is a professional services consultancy delivering added value with a collaborative approach on construction and infrastructure projects. Established in 1979, we have delivered legal ... Read more
38 Payment Construction Law Review 15 September 2015 was on time. Thus the payment mechanism of the scheme did not need to be imported, as the contract already had compliant payment provisions. Furthe... Read more
2016 Penalties 39 Knocked out on penalties Kate Corby, Partner, and William Jones, Associate, Baker & McKenzie Liquidated damages clauses and the rule against penalties W ITH Euro 2016 in full swing a... Read more
40 Penalties Construction Law Review The El Makdessi decision The decision in El Makdessi has reformulated the law against penalties, and arguably allows more flexibility for contracting parties when ... Read more
2016 Penalties 41 provision dealing with the consequences of breach’ are honoured by the lower courts. For those in the process of drafting, or analysing the enforceability of, a liquidated damages c... Read more
42 Collateral Warranties Construction Law Review Collateral warranties: I know I said I would give you them, but...Fenella Mason, Head of Construction and Projects, Burness Paull The Scottish courts s... Read more
2016 Collateral Warranties 43 • The terms of the collateral warranty to be signed must be clear.• There are subtle differences between the law of specific implement in Scotland and the law of specifi... Read more
44 Bonds Construction Law Review Being demanding Recent cases on performance bond calls Stephanie Barwise QC and Omar Eljadi, Barrister, Atkin Chambers Where are we now when it comes to making demands... Read more
2016 Bonds 45 Although nothing new, the prospect of invoking requirements not explicitly stated in the bond, coupled with the apparently fairly strict approach to requiring compliance, seems recently ... Read more
46 Bonds Construction Law Review specific sum because once Coface knew the council’s costs, the sum to be paid was determined by a relatively straightforward process of calculation, applying the sched... Read more
2016 FIDIC 47 FIDIC Red Book, sub-clause 2.4 revisited Simon F Fegen MRICS FAArb, Director, Leach Consultancy Has another year brought any more clarity on sub-clause 2.4?S HORTLY after the publicatio... Read more
48 FIDIC Construction Law Review • On 23 June 2005, NHIC gave notice to reduce the rate of work.• On 5 July 2005, the Ministry of Health wrote to NHIC stating without prejudice that funds were availab... Read more
2016 FIDIC 49 together with NIPDEC’s failure to respond to NHIC’s letter of 8 July 2005 in which it expressed concern at the use of the words ‘without prejudice’.Further, the arbitrator’s award suppor... Read more
50 Letters of Intent Construction Law Review Given the recent prolificacy of payment-related construction cases reaching the courts, it may be only a matter of time before the applicability or otherwi... Read more
2016 Letters of Intent 51 entitled to periodic payments for the work done, even if the letter of intent did not anticipate this — and the total payable in respect of such payments would not necessaril... Read more
52 Estoppel Construction Law Review An (e)stopped clock is right twice a day Is your engineer’s conduct a ticking time bomb?Sarah McCann, Barrister, Hardwicke The estoppel argument in smash and grab a... Read more
2016 Estoppel 53 Where are we now?Although the estoppel argument continues to be aired in smash and grab adjudications and payment disputes, the TCC has yet to fully tease out the limits of the doctri... Read more
TRAINING MENTORING COMPETENCIES APPRAISAL FEEDBACK Competencies Commercial management and geospatial competencies The ICES competencies are essential for membership and help demonstrate you are a qual... Read more
2016 Payment 55 Harding v Paice Rhyming slang for hard cases do not make good law?David Sears QC, Crown Office Chambers Who decided what, when and what are the implications?T HERE has been a number ... Read more
56 Payment Construction Law Review dispute the decision of the adjudicator in a subsequent adjudication because, or so he held, by failing to serve a valid pay less notice, the employer was “to be tak... Read more
2016 Payment 57 not there is an opportunity for subsequent adjustment should make no difference. The failure to serve a pay less notice should either have a deeming effect in relation to all payment a... Read more
58 Contracts Construction Law Review The making of IChemE’s new professional services agreement John Challenger CEng FIChemE FIMechE, Chair, Contracts Committee, Institution of Chemical Engineers John... Read more
IChemE Forms of Contract For over 45 years IChemE have partnered with experienced industry professionals to publish their acclaimed UK and international Forms of Contract. The Red Book – Lump Sum Cont... Read more
60 Contracts Construction Law Review to refer the dispute to the relevant court. Clearly in some locations this may not be a cost effective approach and therefore the parties are encouraged to include... Read more
2016 Contracts 61 financial obligations of the consultant in the event that it fails to satisfactorily carry out the services.Pricing and payment As the range and variety of professional or consultanc... Read more
Accreditation of degrees and diplomas by ICES is a mark of assurance that the programmes meet the standards set by industry; producing graduates with enough knowledge and background to become professi... Read more
2016 Delay 63 Concurrent delay: Time does not always equal money Andrew Bayne, Partner, Centra Consult Extensions of time, LADs and concurrent delay — where are we up to? P RIOR to City Inn v Shepherd... Read more
64 Delay Construction Law Review concurrent delay was operative and where costs were being incurred pursuant to the failings of the contractor. However, where two concurrent issues exist, it should be... Read more
2016 Delay 65 construction project. Under the JCT and the old Institution of Civil Engineers (ICE) forms of contract there was no obligation upon the contract administrator or engineer to undertake a... Read more
66 Risk Construction Law Review With great risk comes...?Gordon Lees FCInstCES, JGL Consulting The management of risk in construction projects “Risk comes from not knowing what we are doing.” Warre... Read more
2016 Risk 67 is important to not only concentrate on the known risks, i.e. those that regularly occur on the type of project under consideration and can be identified from historic knowledge or inform... Read more
68 Risk Construction Law Review The management of risk during the course of the project is an iterative process to monitor the identified risks and the implementation of the mitigation measures and id... Read more
2016 Contract Administration 69 Contract administration for claims and claims avoidance Andy Hewitt FCInstCES FICCP FCIOB FQSi ACIArb, Executive Officer, Institute of Construction Claims Practitioners... Read more
70 Contract Administration Construction Law Review measures may be undertaken, the prudent employer will include provisions for the forthcoming claim in its budget. The contract will sometimes state t... Read more
Do you support the vital work of civil engineering surveyors?Are you ready to start the path to professional recognition? Do you know someone who would benefit from joining ICES as an Affiliate?ICES  ... Read more
2016 Construction Law Professionals 73 Blue Sky ADR 30-32 Howard Business Park Howard Close Waltham Abbey Essex EN9 1XE UK +44 (0)845 371 2575 admin@blueskyadr.com www.blueskyadr.com Peter Barnes MSc ... Read more
74 Construction Law Professionals Construction Law Review Schofield Lothian 3-7 Temple Avenue London EC4Y 0DT UK www.schofieldlothian.com Dr Glyn Jones BSc MBA FRICS FCInstCES FCIArb +44 (0)20 7842 09... Read more
Construction Solutions Drawing on decades of experience working on some of the world’s most complex, high profile construction projects, FTI Consulting has a proven track record in providing solutio... Read more