BULLETIN: Construction law update - April 2016
A construction law update for April 2016 from Blake Morgan.
Key decision by Scotland opens door for major construction projects across the UK
Local authorities across the UK have a new opportunity to take major construction projects forward after the door was opened for a new form of private finance model to be widely adopted.
Simon McCann, a partner in the commercial team at Blake Morgan and a specialist in Non-Profit Distributing (NPD) Model projects, discusses this new development and its potential impact.
See Simon's article here.
Adjudication: When attack is not the best form of defense
In his article 'Steps for the Selector' (published in Building magazine on 10 March), James Bessey, partner in the construction team at Blake Morgan, considered the recent decision in Cofely Ltd vs Anthony Bingham and Knowles Ltd concerning the removal of an arbitrator for apparent bias. The article discusses the principles applied in that case and how they could equally apply to any adjudicator appointments.
See James' article here. (available to members only, but subscription is free)
Payment mechanisms: Avoiding inadequacy
Case: Manor Asset Ltd v Demolition Services Ltd  EWHC 222 (TCC)
The trend of the courts in the last year to require payment notices to be free of ambiguity, so as to be capable of being relied upon, shows no sign of ending. However, this recent finding by the TCC may signal greater efforts by the courts to rely on implied terms, beyond those in the Construction Act 1996 and Scheme for Construction Contract 1998, to avoid situations where the underlying payment mechanism for the notice would clearly be inadequate. This could help to limit the number of instances where an otherwise unambiguous notice would still fail due to a lack of foresight in the original contract drafting.
Adjudication enforcement: Perils of a "hopeless" challenge
Case: AMD Environmental Ltd v Cumberland Construction Company Ltd  EWHC 285 (TCC)
This recent case in the TCC highlights the risks of challenging the enforcement of an adjudicator's decision on unmeritorious grounds. In describing the arguments in support of the defendant's position as "hopeless", Coulson J awarded interest at 6% and costs on an indemnity basis. In a warning to parties who may have been unsuccessful at adjudication, Coulson J stated: "The TCC is concerned that too many adjudication decisions are not being complied with, and that there are too many disputed enforcements where the grounds of challenge are without merit."
Upcoming Events: Breakfast Seminar – CDM Regulations 2015 in practice
In collaboration with Construction Excellence, Blake Morgan shall be hosting a breakfast seminar on 14 April 2016. The seminar will be a review of the differing approaches taken by various stakeholders in the construction industry (e.g. contractors, employers and consultants) to manage the new health & safety duties.
For further information please contact Edward McMullen.