Construction Foundation Newsletter November 2017

• United Kingdom

• Construction and engineering - Foundations

22-11-2017

Foundations will update you with details of what we think are the top court decisions of the previous month and provide a summary of important legislation changes or proposals and a paper providing insight and guidance on a particular area of construction law and practice in the UK and internationally.

We hope you find our e-briefing useful and informative.

International insight

Clarity on concurrency – concurrent delay in construction and engineering projects

This paper, originally presented at the 3rd Annual Global EPC Conference in London in October 2017, is intended to be a one stop shop for those wishing to understand the occurrence and effect of concurrent, sequential, parallel and pacing delay in contracts subject to English law. The paper provides a number of worked scenarios that should assist readers and help them to apply the legal framework to their own projects.

Read full article here

UK insight

Set-off on the right foot: a practical guide to set-off

Employers and Developers typically undertake multiple construction projects at the same time, and normally, having built a successful working relationship and track record with a good professional team or selection of contractors, they will use that same team on the majority of their projects, engaging them over several different projects or for several elements of the same project. With that in mind we discuss here how clients may benefit from the use of the right to “set-off” or from the use of exclusion of set-off.

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Top 3 cases

The impact of Insolvency Act proceedings on adjudication enforcement proceedings

Coulson J has given a clear indication, in South Coast Construction Ltd v Iverson Road Ltd [2017] EWHC 61 (TCC), that he will allow adjudication enforcement proceedings to continue despite a moratorium upon any proceedings under the Insolvency Act 1986 (“IA”). This case is likely to have wide ranging implications in respect of the interplay between the IA and enforcement of adjudicators’ decisions.

Read full article here​

Termination – give the party in breach an opportunity to remedy first

In Interserve Construction Ltd v Hitachi Zosen Inova AG [2017] EWHC 2633 (TCC), Jefford J in the Technology and Construction Court (TCC) granted a declaration that a contractor ought to have been given the opportunity to remedy its breach before its employment was terminated. Depending on the construction of the contract, denying a party the opportunity to remedy its breach prior to termination may constitute a repudiatory breach in itself.

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Adjudication: Court of Appeal guidance on the requirement to serve a pay less notice

The requirement to serve a pay less notice has always been understood to apply to interim payment applications. However, it is less clear whether the requirement also extends to payment applications/notices that follow completion or termination of a contract (i.e. a final account and termination account). The Court of Appeal in Adam Architecture Ltd v Halsbury Homes Ltd [2017] EWCA Civ 1735 recently sought to conclusively address that question.

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Latest Legislation

Legislation Update: Department for Business, Energy & Industrial Energy’s Consultations on payment practices in the Construction sector

As of October 24 2017, the Department for Business, Energy & Industrial Energy published two consultations on Gov.uk which invite industry professionals to participate in the review of (1) the 2011 changes to Part 2 of the Housing Grants, Construction and Regeneration Act 1996 (the “Construction Act”), and (2) the practice of cash retention under construction contracts.

The consultations are part of the government’s efforts to improve payment practices in the construction sector, according to Lord Prior of Brampton, and will likely have an impact on the trajectory of construction specific legislation and practice in the UK. The two consultations are relevant to everyone in the industry.

Read full article here