2016
Diales
uncompromised expertise
Q W
ork globally
Q R
esolve difculties before
completion
Q A
ssist in resolving problems
after completion
Q P
rovide technical evidence in
dispute resolution fora
2016
Contents
Features
04. Forewords
Atkin Chambers
Cover: Goja1
John Challenger,
ICES Publishing
Edited, designed and produced by ICES Publishing.
ICES Publishing is operated by SURCO Limited, a subsidiary of
the Chartered Institution of Civil Engineering Surveyors
Operations Director and Editor in Chief: Darrell Smart BEng
dsmart@cices.org @darrellsmart
Managing Editor: Abigail M Tomkins BA(Hons)
atomkins@cices.org @amtomkins
Media Sales Manager: Alan Lees
alees@cices.org @alan_lees
Administrator and Subscriptions Manager: Joanne Gray
jgray@cices.org
Claims Practitioners
Chartered ICES
CharteredICES
CInstCES
CharteredICES
Published by the Chartered Institution of Civil Engineering Surveyors. Statements made and opinions expressed in this publication do not necessarily reect the views of the institution, its Council of
Management or other committees. No material may be reproduced in whole or in part without the written permission of the publisher. All rights reserved. Printed using PEFC-certied paper as part
of the institutions commitment to promote sustainable forest management. Printed by Buxton Press Limited, Palace Road, Buxton, Derbyshire SK17 6AE.
2016 Chartered Institution of Civil Engineering Surveyors. ISSN 0266-139X
Foreword
A celebratory issue
20 years of the Construction Law Review
David Loosemore, President, Chartered Institution of Civil Engineering Surveyors
Then and now... The articles of David Carrick, Jonathan Hosie and Alexander Nissen.
2016
Foreword
SCL
The Society of Construction Law was
founded in 1983 in the kitchen of John
Tackaberry QC. The germ of Johns idea, to
create a forum for promoting the education
and discussion of construction law issues,
quickly took hold. More than three decades
later the UK SCL now has more than 2,500
members, and worldwide there are SCLs on
every continent.
Our world
Construction law matters, and if you are
interested in construction law then the
Society of Construction Law is for you.
With that introduction, may I encourage
you to start turning the pages of this
Construction Law Review, and to explore
the richness of issues that exist in our
construction law world.
Julian Bailey, Partner, White & Case, and
Chair, Society of Construction Law (UK)
julian.bailey@whitecase.com
www.whitecase.com
www.scl.org.uk
@SCL_UK
Specialist Advocates
to the Industry
2016
20 Years
20 Years
Expert evidence
Another area where substantial change has been felt is the use of
expert evidence; a regular feature of construction litigation. Both
the CPR and the TCC guide give the court far more control over
the use and presentation of expert evidence. For instance, the
court has the power to order the instruction of a single joint
expert on any given issue. Where there are separate experts, the
court will usually require them to meet prior to the trial to discuss
their respective evidence and produce a joint statement setting
out the areas in which they agree, the issues upon which they
disagree and the reasons for this disagreement. This is intended to
clarify the matters actually in dispute and narrow the issues before
the court.
The court also has control over the manner in which expert
evidence is presented. It is possible for experts to give concurrent
evidence (colloquially known as hot-tubbing) so that in disputes
involving multiple technical issues, the court can more easily
identify what the opposing expert evidence is on a given issue.
The use of hot-tubbing varies widely across the various TCC
courts, with some judges expressing enthusiasm,5 and others rarely
using it. The judiciary is now undertaking an enquiry into the
varied uptake of hot-tubbing to see if it could be more frequently
used to further the efcient conduct of litigation.
Costs management
The other signicant procedural reform which has been
introduced since 1998 is costs management. After completing
a review of costs in civil litigation in 2013, Lord Justice Jackson
introduced reforms to the manner in which costs are dealt with
in civil litigation. There has been a complete change in emphasis,
away from retrospective review of costs, towards prospective
costs budgeting.
The mainstay of these reforms is the obligation to le costs
budgets in almost all cases which are worth less than 10m. The
parties are bound to attempt to agree their budgets between
themselves and if this is not possible the court will approve the
budgets. The court is given a hands-on role in the management
3
CPR PD 3E
CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd (2014) EWHC 2546 (TCC)
8
F Sinclair QC et al, The Pioneering TCC: Pushing the Boundaries on Litigation Costs
SCL Paper D185, December 2015
9
Jackson LJ, Fixed Costs The Time Has Come IPA Annual Lecture, 26th January
2016
10
Senior judges oppose singling out clinical negligence for xed costs as consultation
nears, Litigation Futures, 23rd May 2016
7
2016
20 Years
Adjudication
Conclusion
A great deal has changed in the world of
construction litigation since 1996. Many
of the reforms which have been applied
to civil litigation generally have been
pioneered in the TCC. This is part of a long
tradition of construction litigation being at
the forefront of procedural reform.
It was in the old Ofcial Referees
Courts that the use of written witness
statements as evidence, the early exchange
of expert reports, and the use of Scott
schedules were pioneered all of which
still form key parts of construction litigation
today. Despite the passage of time, the
TCC seems to be in no immediate danger
of losing its reputation as a pre-eminent
venue for the resolution of construction
disputes. I look forward to writing about
developments in 2036!
Alexander Nissen QC, Barrister,
Keating Chambers
anissen@keatingchambers.com
www.keatingchambers.com
@keatingchambers
11
Dr R Gaitskell QC, Trends in Construction Dispute
Resolution, SCL Paper 129, December 2005
Belong here
2016
AI
(Y[PJPHSPU[LSSPNLUJLHUKSH^
Simon Tolson, Senior Partner, Fenwick Elliott LLP
AI today
11
12
AI
We had the big bang when the legal profession, and how it accessed
material, began to change forever. It changed law in a way nothing
else had for c.300 years.
Watson2 and Richard and Daniel Susskinds latest book, The Future of the Professions,
which predict an internet society with greater virtual interaction with professional services
such as doctors, teachers, accountants, architects and lawyers.
Linklaters and Pinsent Masons are the latest law rms to announce publicly their
investment in AI, as the legal profession tries to automate the most mundane tasks
that traditionally have been the preserve of more junior lawyers. Pinsent Masons has
developed a program that reads and analyses clauses in loan agreements. Its TermFrame
system also helps guide lawyers through transactions and point them towards the correct
precedents at each stage of a process.
Another law rm, Dentons, has set up NextLaw Labs,3 a virtual company which looks
at the application of technology within the law. It has invested in ROSS,4 an IBM Watson
powered legal adviser app, that streamlines legal research, saving lawyers time and
clients money. BLP and Linklaters have signed on with developer RAVN5 and developed
a computer program to sift through various UK and European regulatory registers to
check client names for banks. In transactional work, LONald can, for example, send
an enquiry to Companies House to check if the address in a document matches the
company number. If the address is out of date, the computer will ag it for review. The
team will then consider all agged documents in one go at the review stage. It thus
converts unstructured data (for example, contracts) into structured output (for example, a
spreadsheet) in a fraction of the time (a few seconds) it takes a human and with a higher
degree of accuracy! The lawyers then do the higher-level strategic review to make sure
nothing is missed.
Professor Richard Susskind, who is also IT adviser to the Lord Chief Justice, has
predicted radical change in the legal sector, pointing out that intelligent search systems
could now outperform junior lawyers and paralegals in reviewing large sets of documents
and selecting the most relevant. Prof Susskind said at a conference recently6 that he
believes the legal profession had ve years to reinvent itself from being legal advisers to
legal technologists and criticised law schools for churning out 20th-century lawyers.
Prof Susskind stated that over the course of the next decade, AI would move forward
so quickly that systems themselves would be able to assess, diagnose and respond to
the legal problems posed by clients. But instead of suggesting that this was a threat to
the profession, he instead claimed that it was an opportunity to become engineers of
knowledge, and to shape the future of the profession in a positive way. He stated:
For the next ve years, the legal profession will work on using better human-resource
models, delegate to paralegals, move to better locations and give lawyers far better
systems... It is not that there are no jobs in the future, but the 2020s will be a decade
of redeployment not unemployment. It is not an emergency but over the next ve years
we have to prepare. More and more legal services will be enabled by the support of new
technology. You can say that is for the technology industry to sort out, or you can be
part of the technology industry.
Where next?
So where is all this headed? Well, for sure, away from where we are now. Much the same
applies with how building information modelling can expedite design improvement and
2
It is amazing that Watson analyses unstructured data, understands complex questions, and presents answers and
solutions. www.ibm.com/smarterplanet/us/en/ibmwatson/
3
A global collaborative innovation platform set up in May 2015 focused on developing, deploying and investing in
new technologies and processes to transform the practice of law around the world. www.nextlawlabs.com/
4
ROSS is an articially intelligent attorney to help power through legal research. www.rossintelligence.com/lawyers/
5
RAVN helps you make sense of the explosion of big data in your organisation through state-of-the-art software
solutions. www.ravn.co.uk/
6
Law Societys Law Management Annual Conference: http://communities.lawsociety.org.uk/law-management/events/
law-management-section-events/law-management-section-annual-conference-27-april-2016-london/5052637.fullarticle
2016
AI
Robots are unlikely to replace lawyers in court, but they can prepare
papers for hearings and do other clever things with massive data.
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 for a fact computer modelling techniques and stochastic analysis7 in hydrogeology
are now helping developers address run-off and drainage issues in the UK8 and provide
real-time ood forecasting from catchment to national scales. In the law, text analytics and
machine learning can be incredibly helpful in enabling the data to tell its story, and what
we are nding is that computers are learning in large data cases they can be better
than human lawyers, particularly tired human lawyers.
Predictive coding enables users to sample data such as on a large project and identify
what is relevant. Through sampling, the program is able to learn which documents are
relevant. This process greatly reduces the time needed for e-discovery and document
review because the program is searching for concepts as opposed to simple keywords.
Indeed our own Law Society president, Jonathan Smithers, is bang on the money on
this issue. He acknowledges we live in complicated times. Complicated times require
the knowledge and advice of the global legal community, practical experts who can
develop long-lasting solutions to help us mitigate the crisis micro-economically, macroeconomically and geopolitically. The legal community, however, is often called too late.
We are involved when our clients have reached crisis. We are called to re ght, we are
the A&E department. At this point, the role of the legal professional may be rather limited.
Bright lawyers and astute law rms need to ask themselves, what are the common
developing legal issues coming over the skyline? The impact of technology on the law
is one such issue. We live in a globalised world. The exponential growth of technology
has created a new world order. It affects how we talk, how we learn, how we trade. The
world is, quite simply, more interconnected than ever and using big data is key.
The future is not desolate. The globalised world has also brought hope and
opportunity. Technology has already restructured the way we do business and
signicantly impacted the practice of law. We are already using technology to
communicate with our clients more quickly, to manage their data and to make our
businesses more efcient. Skype, instant messaging, WebEx online meetings and email are
part of our everyday working lives.
AI will become more embedded in our lives. In many ways, it is already part of the
way we interact with each other and with the world. When ebay suggests products you
may like, that is AI. Siri on your iPhone, thats also AI. Anti-lock braking systems on cars
and systems that wake you up as you nod off; AI. It is already everywhere. But, what
does this mean for lawyers?
Many of our business clients Google their legal problems before they come to see us.
Pro bono portals are available, helping people to access legal advice early. Of course,
self-diagnosis can never be a replacement for legal professionals any more than it can for
physicians. The functions we carry out as lawyers extend far beyond dispensing blackletter legal advice. Lawyers will, however, need to consider the ethical and legal dilemmas
brought by AI in much the same way that architects and engineers are doing with
building information modelling and intellectual property.
Ethical duties
Lord Neuberger, president of the Supreme Court, only last week called for a debate on
the ethical implications of AI and for greater prominence for ethics in legal training.9
Law schools will therefore need to pull up a sock or two. Lord Neuberger made his plea
for greater prominence for ethics training both on university law courses and professional
legal training courses.
7
Having a random probability distribution or pattern that may be analysed statistically but may not be predicted
precisely
8
The Groundwater Foundation, a non-prot organisation that educates people and inspires action to ensure
sustainable, clean groundwater for future generations
9
Lord Slynn memorial lecture, 15 June 2016: www.supremecourt.uk/docs/speech-160615.pdf
13
14
AI
Lord Neuberger said that the earlier and more effectively potential professional lawyers
and advocates could be trained to appreciate and understand the importance and nature
of their ethical duties, the stronger a legal profession we will have, and the stronger the rule
of law will be.
Back in 2013, the judge urged the legal profession not to lose sight of its fundamental
principles in the rush for modernisation, warning about the risks of pressure from
hard-nosed businessmen who may invest in law rms. The legal profession should be
preparing for the problems and opportunities that may arise from such an enormous
potential area of development, and one of the most difcult challenges will be to consider
the potential ethical implications and challenges.
Whilst Lord Neuberger does not fully embrace the Susskind view of future legal life, he
does say that the Susskinds point out that this potential development has ethical, as well
as employment, implications and they rightly call for a public debate on the issue. Lord
Neuberger likewise warned of increased potential for ethical conicts where alternative
business structures (ABS) were owned by non-lawyer investors who are ultimately
only concerned with the bottom line. The investors will often have no experience of, or
interest in, the lawyers ethical duties.
www.fenwickelliott.com
2016
AI
15
The world will always be complicated. But if lawyers take the time to put their
minds together, to learn from one another, they can x pervasive problems like new
technological solutions. If we are successful, we will make the legal profession worthy of
this millennium, all the more so with regard to the construction industry.
Simon Tolson, Senior Partner, Fenwick Elliott
stolson@fenwickelliott.com
www.fenwickelliott.com
@fenwickelliott
Subscribe Today
Includes the annual supplements
CONSTRUCTION LAW REVIEW
GEOSPATIAL ENGINEERING
45.60 (UK)
50.75 (Europe)
55.85 (Rest of the World)
16
Expert Witness
Expert errors
John Mullen
Access to Justice, Interim Report, June 1995; Access to Justice, Final Report, July 1996
Who unfortunately did not gain his early training in Londons Dock Green area
2016
Expert Witness
17
Contradicting himself.
Seeking to avoid answering hypothetical questions.
Only reluctantly making concessions.
Mostly basing opinions on hearsay evidence.
Acting as an advocate advancing his clients case.
Not giving evidence objectively, but to justify the conclusions
he had formed.
Disregarding or discounting facts inconsistent with his own
theories or conclusions.
Lacking independence from his client in that he:
-Undertook the original investigation leading to the claim.
-Was involved in the gathering of evidence and pleaded
formulation of the claim.
-Giving evidence in areas where he lacked expertise.
18
Ground Conditions
HERE I was, sitting in my ofce, trying to get my head around a particularly difcult point in an
adjudication when Alan Lees from the Chartered Institution of Civil Engineering Surveyors phoned me. I
was grateful for the call, not only because it is always good to talk to Alan, but also it meant a break from
the mind warping adjudication. Alan reminded me that the rst publication of the Construction Law Review was
20 years ago and that I had featured in it. Kindly, if somewhat embarrassingly, Alan sent me a copy of the article.
It included a photograph. I have searched the attic in vain but sadly the original appears to have been lost.
On the topic of photographs, one of my colleagues mentioned the photograph I had shown her of my
endeavours to do some setting out at the beginning of my career and that in turn led to a discussion about my
rst overseas trip and a war story. It seems that as ones career matures, so war stories become more or less
mandatory. However, this one is relevant to the subject matter of this article so please bear with me.
FIDIC
A lot of my work nowadays is international
work and I nd myself quite often
working with the International Federation
of Consulting Engineers (FIDIC) forms
of contract. For those of you of a similar
vintage to myself who have not used
the FIDIC form, you would immediately
,/>>E,>WzKhDE'd,,/',Z/^<^K&KE^dZhd/KE
t 6
,/
t
t
t
,
K
^
WD^
td
WD
WD
>^
D
WDK
dWd
D
^
D
>
W
ZD
^/,d
&&
Z
,/h<>
Z^,^
d
WD
,/h<>
<
^W
W
tz
d
Kh<
d,
,/h<>
W^
>sZE
d
20
Ground Conditions
2016
Ground Conditions
21
22
Ground Conditions
Paragraph 94
Paragraph 223
2016
Ground Conditions
Clause 8.4 deals with extensions of time in FIDIC contracts and the
relevant part is the following terms:
The contractor shall be entitled subject to sub-clause 20.1...
to an extension of the time for completion if and to the extent
that the completion for the purposes of sub-clause 10.1... is or
will be delayed by any of the following causes...
My emphasis added.
In the rst instance judgment6 deals with the matter of notices.
Two issues emerged; the form of the notice and its timing. In
general terms, the judge took a fairly pragmatic view of these
provisions saying that they should be construed reasonably
broadly given the serious effect that they would have if strictly
construed. There is no need for the notice to be any particular
form, but it must be identiable as notifying a claim and given
in writing.
The timing of notices was also dealt with on a non-prescriptive
basis. The provisions of clause 8.4 are said to allow two dates that
affect the notice. These are when completion (i) is being delayed
or (ii) will be delayed. The rst is termed a retrospective delay
because the delay has started, and the second a prospective future
delay. Either date can trigger the claim and apparently can be the
start of the 28-day period within which the notice must be issued
as required by clause 20.1.
I am reluctant to comment too much on this issue but I will say
that it is not an approach that I have seen in practice. Stretched
to its limit, could it mean that a whole raft of extension of time
claims could be notied on the scheduled completion date, i.e.
when completion is absolutely known to be delayed?
Does the same ethos apply to any additional payment because
clause 20.1 deals with both? This may not be so clean cut because
clause 8.4 only refers to extensions of time and not additional
payment. OHL was only awarded a one day extension on account
of encountering rock the extension of time claim for weather
delays was rejected for lack of notice.
Would I advise a contractor not to notify the very instant
it became aware of a potential delay? The answer to that is a
resounding no! Would I advise a contractor that had not notied
until it became aware of an actual delay to completion to use this
case? Yes.
Just to close... Yes, the runway I recollected in my personal history
was Gibraltar. But you probably guessed that anyway.
David Carrick FCInstCES FICE FCIArb MRICS MCIPS MBAE,
Senior Vice President, Hill International
davidcarrick@hillintl.com
www.hillintl.com
@hillintl
6
23
19.95*
Available now
2016
FIDIC
:PNUPJHUJLVM[OL507+,*KLJPZPVU
25
26
FIDIC
2016
FIDIC
27
28
FIDIC/Adverse Weather
Concluding remarks
The decision in Beckton Energy illustrates
the importance of bespoke amendments
to the FIDIC forms of contract. The court
commented that the amendments had not
been fully thought through (noting the
NIPDEC decision and the tension between
sub-clause 2.5 and the liquidated damages
deduction provision in sub-clause 8.7,
even with the deleted words). However
and on balance, the court in Beckton
Energy found that the right to deduct
damages in sub-clause 8.7 (as amended)
created a self-contained and separate
right of the employer to make deductions
against, or require payment from, the
contractor, independent of the employers
claim machinery in sub-clause 2.5 or the
determination machinery in sub-clause 3.5.
Adverse weather
What are the differences?
Emily Monastiriotis, Partner, with Susanne Hose, Solicitor, and Simos Schizas, Paralegal, Bond Dickinson
2016
Adverse Weather
29
Contract
Wording / Denition
Notice
Comments
JCT
NEC3
ICE
FIDIC
30
Payment
*SVZPUN[OLVVKNH[LZ
The effect of the payment provisions under LDEDCA 2009
Peter Barnes
2016
Payment
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 was issued, the amount requested in the default payment notice would be the
amount that would need to be paid. However, the courts had other ideas.
Leeds v Waco
The rst matter that the courts dealt with was in the Leeds City Council v Waco UK Ltd
(2015) EWHC 1400 (TCC) case. It was in respect of what default payment notices needed to
be submitted at the right time to be valid.
After practical completion, Waco submitted its September 2014 payment application six
days before the contractual date specied. The employers agent refused to recognise the
payment application as it had been served prematurely. The contractor referred the matter
to adjudication and obtained a decision in its favour.
However, in subsequent part 8 proceedings, the court found that the contractors
September 2014 post-practical completion payment application was not valid. It had been
served too early, even though a previous post-practical completion payment application
was issued early and was accepted by the employers agent. Therefore, the contractor
could not rely on the September 2014 payment application as being a default payment
notice as it had not been served at the correct time.
Henia v Beck
Following on from this, the case of Henia Investments Inc v Beck Interiors Ltd (2015) EWHC
came along. In this case, Beck submitted an application for payment on 28 April
2015, six days later than it should have been submitted.
The contract administrator issued its own payment certicate in respect of the April
2015 valuation period, on 6 May 2015, but the payment certicate was one day late. Beck
did not submit a payment application for the end of May 2015 valuation period, but the
contract administrator issued a payment certicate in any event, although that certicate
was again issued one day late. The employer issued a pay less notice against this latter
payment certicate, reducing the amount due to the contractor to nil.
At this point, Beck said that if its application for payment dated 28 April 2015 had been
served too late for the end of the April 2015 valuation date, it should be carried over as
the payment application for the end of May 2015 valuation. Also because the contract
administrators payment certicate at the beginning of June 2015 had been issued one
day late and was therefore in-valid (and as the pay less notice related to that said in-valid
payment certicate was also by default in-valid), Becks application for payment dated
28 April 2015 became the default payment notice which set out the notied sum that
needed to be paid. The adjudicator agreed with this position, but the court did not.
The court found that there was nothing in the 28 April 2015 payment application that
indicated that it was a payment application for 29 May 2015 (in fact the document said
that the works had been valued up to 30 April 2015). Also, the said document was not
in the substance or form of all previous payment applications. Therefore, Becks
payment application dated 28 April 2015 could not be relied upon as being a default
payment notice.
2433 (TCC)
31
32
Payment
And others...
Following on from the above, the Severeld (UK) Ltd v Duro Felguera UK Ltd (2015)
EWHC 3352 (TCC) case made it clear that a default payment notice needed to clearly set
out the basis on which the sum claimed had been calculated. The Grove Developments
Ltd v Balfour Beatty Regional Construction Ltd (2016) EWHC 168 (TCC) case found that
the payment provisions of the scheme were not imported to provide for further interim
payments after the last date on an agreed schedule of dates had expired.
Other similar cases followed in respect of the need to comply precisely with the
required timing of applications and/or the need for there to be complete transparency
of submissions. These include Manor Asset Ltd v Demolition Services Ltd (2016) EWHC
222 (TCC); RMC Building & Civil Engineering Ltd v UK Construction Ltd (2016) EWHC 241
(TCC); and Jawaby Property Investment Limited v The Interiors Group Limited (2016) EWHC
557(TCC).
2016
Extensions of Time
CEng MICE,
XTENSIONS of time are again hitting the headlines following the recent
Technology and Construction Court decision in Carillion Construction Ltd v Woods
Bagot Europe Ltd and others (2016) EWHC 905 (TCC). It was a dispute in relation
to the proper interpretation of a standard form of construction subcontract provision.
Carillion contended that the nature of the particular subcontract clause warranted a
departure from the method by which extensions of time are usually applied. However,
the court rejected this argument, and found in Emcors favour that an extension of time
was to be treated in the usual manner. With this in mind, what are the key parameters for
determining extensions of time and what is the level of proof required?
Background
Uncertainty is endemic within the construction industry and, through a combination of
many factors, construction projects do not proceed as planned with the risk that the
contractual completion date will not be met. For contractors, this results in a delay to the
completion of the works, with a corresponding liability to the employer for liquidated
damages and the potential of cost overruns due to the increased costs of performance
arising from prolongation. For employers, delays result in a loss of prot, loss of revenue
and potential liability to the design team and other members of the professional team.
The construction team at FTI Consulting is regularly engaged
to provide expert delay services in relation to formal dispute
procedures but also, as a precursor, to prepare or rebut extension
of time claims. In these instances a contractor will seek assistance
in identifying and setting out its entitlement to an extension of
time or an employer may seek assistance in assessing the
criticality of alleged delays and the appropriate award of an
extension of time. In doing so, the key principles relating to
the preparation and award of extensions of time are often
misinterpreted or over simplied.
33
34
Extensions of Time
2016
Extensions of Time
A further obstacle
As a precursor to being granted relief for an excusable delay, most
standard forms of construction contracts require the contractor to
provide notication when the progress of the works is affected by
a delay, excusable or otherwise, as close as possible to when the
delay arises. For example, clause 2.27 of the JCT standard form,
61.3 of NEC3, clause 20.1 of FIDIC Red Book and clause 18.4 of
PPC2000 all expressly state a requirement for such notice.
The common law position raises doubts as to whether a
condition precedent, as set out within the JCT suite, is effective
in dismissing the prevention principle in relation to an excusable
critical delay,7 although the NEC3 and FIDIC forms expressly
state that a failure to provide a timely notication dismisses any
subsequent claim for an extension of time.8
John Barker Construction Limited v London Portman Hotel Limited (1996) 83 BLR 31
In line with the Scottish case of City Inn Ltd v Shepherd Construction Ltd (2007) Scot
CSOH 190 and Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd (2007)
EWHC 236 (TCC) which have cast doubts on whether Gaymark Investments Pty Ltd v
Walter Construction Group (1999), which stated that failure by a contractor to comply
with a condition precedent notifying the employer of a delay rendered the extension
of time provision ineffective and set time at large, is the position in English law
8
These clauses are drafted in line with Bremer Handelsgesellschaft MBH v Vanden
Avenne Izegem (1978) 2 Lloyds Rep. 109 which stated that precise/clear timetables
must be identiable and the result of missing this timetable must be clearly spelt out
7
35
It is becoming increasingly
common for concurrent delay
clauses to be included within
construction contracts.
subjectivity of this process and set out
the following criteria to be adopted in
calculating a fair and reasonable award:
Conclusion
The majority of standard forms of
construction contract enable the contract
administrator to grant an extension of time
where a delay occurs due to its own act
of prevention or for certain other specied
causes. However, before the employer can
grant an extension of time, it needs to be
satised that not only has an excusable
event, as dened under the contract,
occurred, but also that it is likely to cause,
or has caused, the completion of the works
to be delayed.
Herein lies the opportunity for the
contractor to assist in this evaluation
process by way of including a robust
delay analysis demonstrating the causative
effect of the excusable delay. The proper
application of a critical path analysis,
although not compulsory, can accordingly
be used to effectively demonstrate the
criticality of delays, either as a driving
delay or concurrent delay, and the
entitlement to an extension of time which
is due as a result.
Manoj Bahl CEng MICE, Senior Director
FTI Consulting
www.fticonsulting.com
@FTIConsulting
36
Payment
FCInstCES,
The dispute
(SVVRH[JVU[YHJ[ZWLJPJ
payment mechanisms
Contract Services
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 and contract services
on many large infrastructure programmes and
property projects throughout the UK with major
contractors, public organisations and property
companies. We provide the following contract
services:
Claims Avoidance Contract Drafting
Contract Review & Advice Dispute Resolution
Expert Witness Legal Commercial Advice
Litigation Support Risk Management
For information on Contract Services,
contact Alan Williamson,
alanwilliamson@schofieldlothian.com
For other services, contact Mike Upton,
07810 850030, mikeupton@schofieldlothian.com
Consents & Engagement | Environment & Sustainability | Estimating | Project Management | Quantity Surveying | Contract Services
Schofield Lothian Limited, 3-7 Temple Avenue, London EC4Y 0DT 020 7842 0920 www.schofieldlothian.com
38
Payment
Summing up
As already commented in the introduction,
the ndings in this case initially appear
to be somewhat surprising. It is a very
common occurrence for projects to overrun
and the employer to continue to make
interim payments to the contractor, even if
the dates upon an incorporated payment
schedule have in fact expired. Although
the ndings here will not be of general
application, due to certain case specic
circumstances, contractors will nonetheless
need to be wary when xed payment
schedules are incorporated into their
conditions of contract.
Whilst most conditions provide for a
further nal account payment at the end
of the project, this could be many months
away in the event of signicant programme
overruns often at the end of the defects
correction period that would be of at least
12 months duration, with consequential
adverse effects upon the contractors
cashow with subcontractors, suppliers
and the like still requiring payment in
this period of overrun. Contractors would
therefore be well advised, if in doubt,
to seek the incorporation of an express
provision, at the contract negotiation stage,
setting out what would happen should
the applications provided for within any
incorporated payment schedule expire
prior to the works being complete.
Alan Williamson FCInstCES,
Principal Consultant,
Schoeld Lothian
alanwilliamson@schoeldlothian.com
www.schoeldlothian.com
2016
Penalties
39
Liquidated damages
clauses and the rule
against penalties
Previous law
Prior to the judgment in El Makdessi, the
leading case was Dunlop Pneumatic Tyre
Co Ltd v New Garage and Motor Co Ltd
(1915) AC 79. The speech of Lord Dunedin
in this case contains the guidance that was
most commonly referred to by practitioners
on the distinction between a penalty and
a liquidated damages clause. This can be
summarised as follows:
1. Although the words the parties use
to describe a particular provision are
not irrelevant, the court must decide
in substance whether a provision is a
penalty or a liquidated damages clause.
2. The essence of a penalty is that it
seeks to deter a party from committing a
breach by requiring them to pay money
on occurrence of that breach. The
essence of a liquidated damages clause
is that it is a genuine pre-estimate of
loss agreed by the parties.
3. Whether a provision is a penalty or
liquidated damages clause depends on
the terms and circumstances of each
particular contract, assessed from the
perspective of when the contract was
created, rather than when the breach
occurred.
4. A number of tests may be used,
which if applicable to a particular case,
may assist with assessing the nature of a
particular provision:
40
Penalties
2016
Penalties
41
N
Not a penalty
Lord Hodge echoed this and went further still, stating that:
The focus on the disproportion between the specied sum and
damage capable of pre-estimation makes sense in the context of
a damages clause
He continued:
Where the test [for a penalty] is to be applied to a clause xing
the level of damages to be paid on breach, an extravagant
disproportion between the stipulated sum and the highest level
of damages that could possibly arise from the breach would
amount to a penalty and thus be unenforceable.
This element of the Supreme Court judgment seems somewhat
self-contradictory, and may ultimately lead to some confusion
when considering the enforceability of a liquidated damages
clause. Nonetheless, our view is that their Lordships were
unequivocal that the genuine legal test for assessing whether a
clause is penal is the three-step test we set out earlier.
Comment
At the time of writing, there have not yet been any reported
cases that apply the El Makdessi decision to a liquidated damages
scenario. As such, it remains to be seen how the courts will
interpret the Supreme Courts reframing of the penalty rule, and
whether they will allow contracting parties more leeway to agree
in advance the amounts of damages to be paid on breach.
Since liquidated damages provisions are a useful and practical
tool for parties to avoid disputes arising from construction
projects, it is hoped that the Supreme Courts comments about
parties being themselves the best judges of what is legitimate in a
Not a penalty
Penalty
The penalty owchart.
42
Collateral Warranties
Collateral warranties:
I know I said I would give you them, but...
Fenella Mason, Head of Construction and Projects, Burness Paull
2015: The consultant agrees, but then changes tack and refuses
The consultant was initially reluctant to sign the collateral warranty
but its solicitor eventually agreed to deliver it on payment of
certain outstanding fees (known as the 2015 bargain). The
contractors solicitors sent a cheque in payment of the fees and
asked for delivery of the collateral warranty. The consultant then
changed tack, presumably appreciating that signing the collateral
warranty would create a contractual link which would increase
its exposure in respect of the alleged defects claim raised by
the council. The consultant refused to deliver it. The contractor
asked the court to grant an order for what is known in Scotland
2016
Collateral Warranties
43
44
Bonds
Being demanding
Recent cases on performance bond calls
Stephanie Barwise QC and Omar Eljadi, Barrister, Atkin Chambers
Sea-Cargo Skips v State Bank of India (2013) EWHC 177 (Comm) at [27]
Established in IE Contractors at p.501
3
See also Sea-Cargo Skips at [29] - [30]
2
2016
Bonds
An impressive array
of silks and juniors
Legal 500
www.atkinchambers.com
45
46
Bonds
See
See
6
See
7
See
5
[19]
[26]
[28]
[30]
See [22]
See Esal
See IE Contractors
10
2016
FIDIC
MRICS FAArb,
The facts
Chronologically, the brief facts of the case are:
47
48
FIDIC
Also at:
2016
FIDIC
The decisions
The arbitrator gave two reasons in support of his decision to
uphold the contractors entitlement to terminate the contract
on 3 November 2006. The arbitrators primary reason was that
reasonable evidence was not given by NIPDEC. The other reason
relates to whether the sums referred to in the responses were
adequate under sub-clause 2.4; this aspect is not dealt with here
merely due to shortage of editorial space another time perhaps?
The Privy Council judgment does not make any mention of the
fact that on two occasions the Ministry of Health responded to
NHIC, instead of NIPDEC as required under the contract.
The arbitrator decided that NIPDECs letter of 29 December
2004, and the Ministry of Healths of 5 July 2005 and 6 October
2006, did not amount to such reasonable evidence that nancial
arrangements have been made and are being maintained which
will enable the employer to pay the contract price as required
under sub-clause 2.4.
The arbitrator referred to evidence given by the permanent
secretary, who explained that she had sought cabinet approval
on receipt of NHICs letter of 27 October 2006, as demonstrating
that cabinet approval was necessary for the payment of funds.
Further evidence was that the need for cabinet approval prior to
expenditure on construction contracts was rarely, if ever,
departed from.
Referring to sub-clause 2.4, the arbitrator concluded that
providing reasonable evidence that nancial arrangements have
been made by the employer requires more than just showing
that the employer was able to pay, and that more positive steps
were required; i.e. NIPDEC had to produce evidence that
cabinet approval for payment of sums due under the contract had
been obtained.
The arbitrators award supported NHICs entitlement to suspend
the work under sub-clause 16.1 on 23 September 2005 on the
basis of the words without prejudice and the absence of any
conrmation of cabinet approval in the letter of 5 July 2005,
49
50
Letters of Intent
HERE has been much written about (and cautioned against) the use of letters
of intent over the years. It is perhaps a testament to the attention letters of intent
have been given that the courts have seen very few cases recently where the
parties are governed, or said to be governed, by them.
It is not my intention to repeat what are perhaps now trite warnings over the use of
letters of intent in place of entering into formal contractual arrangements although,
there is no harm in repeating it, if just once. There is, however, one aspect in respect of
them which has had less practitioner attention than perhaps it ought; the impact of the
payment provisions of the amended construction act on the payment arrangements under
letters of intent.
Edwina Acland on an
aspect of letters of intent
that isnt widely debated
2016
Letters of Intent
51
KE^dZhd/KE/^Whd
,/E'
&KZ
:h/d/KE
Z/sE
:h/d/KE
EKd/
zKhE
^dZd'z
>>KhZZW/
Z^WKE^^Zs/
$GMXGLFDWLRQ$GYLFHLVDVSHFLDOLVWVHUYLFHRIIHUHGE\6KDUSH3ULWFKDUGV
FRQVWUXFWLRQODZDQGGLVSXWHUHVROXWLRQWHDPV
:KDWHYHU\RXUSRVLWLRQZHZLOOVXSSRUW\RXZLWK
GLVSXWHUHVROXWLRQVWUDWHJ\
OLDLVRQZLWKH[SHUWV
DGYLFHRQSURFHGXUH
UDSLGUHVSRQVH
SUHSDUDWLRQIRUDGMXGLFDWLRQ
SUHSDUDWLRQRIUHVSRQVHV
DSSHDOLQJDGHFLVLRQ
HQIRUFHPHQW
ADJUDIC
ATION
ZYh^dzKhZ&Z'h/
dKd,:h/d/KEWZK^^
7RGLVFXVVKRZ6KDUSH3ULWFKDUG
FDQKHOSFRQWDFW
-XVWLQ0HQGHOOH
7
(MPHQGHOOH#VKDUSHSULWFKDUGFRXN
ZZZDGMXGLFDWLRQDGYLFHFRXN
THE PRO
CESS
A handy guide
process for: to understanding the
adjudicatio
n
referring a
dispute to
adjudicatio
responding
n
to an adjud
ication notice
.
52
Estoppel
Leeds v Waco UK
argument was raised in front of EdwardsStuart J, and Waco relied on Jacobs failure
to insist upon the contractual valuation
date as a course of conduct that had led
it to believe that an application would be
accepted, even if it had not been made
on the precise contractual valuation date,
from which it would be unconscionable to
permit LCC to resile.
Edwards-Stuart J was persuaded that
there was sufcient evidence of a course
of conduct that gave rise to an estoppel.
However, the estoppel would only apply
to interim applications made after the
specied contractual valuation date, and
not before:
I nd that there was a course of
conduct by which Jacobs, on behalf
of LCC, agreed to accept monthly
applications that were made up to
three to four business days after the
contractual valuation date. Jacobs was
the agent authorised to administer the
contract and in my view LCC would
not have been permitted to reject, in,
say, January 2013, had it been minded
to do so, an application made three to
four business days after the contractual
valuation date. That would be
inconsistent with the course of conduct
that was by then established. [43]
Jacobs conduct had created an estoppel
that, on different facts, would have entitled
Waco to payment. The point may be
crucial in other cases, but it is equally
important to note the limits that EdwardsStuart J identied in relation to Jacobs
authority to bind LCC to the estoppel. The
court had to look to the authority conferred
upon Jacobs and determine whether it was
acting within the ambit of that authority
or whether it was exercising more broad
powers and purporting to vary the terms of
the contract. In the latter case, LCC would
not be bound by the estoppel. However,
because the contract had specied that
the valuation dates would stand unless
otherwise agreed, in this case Jacobs was
merely exercising the contractual power
vested in LCC as its agent.
2016
Estoppel
53
Competencies
TRAINING
MENTORING
COMPETENCIES
APPRAISAL
FEEDBACK
2016
Payment
55
Harding v Paice
Rhyming slang for hard cases do not make good law?
David Sears QC, Crown Ofce Chambers
([YZ[PUZ[HUJL
56
Payment
The failure to serve a pay less notice should either have a deeming
effect in relation to all payment applications or in relation to none.
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 taken to be
agreeing the value stated in the application and, moreover, the adjudicator must be
taken to have decided the question of the value of the work carried out by the contractor for
the purposes of the interim application in question.
However, the judge stressed that the deemed agreement could not constitute any
agreement as to the value of the work at some later date. There was nothing to prevent
the employer challenging the value of the work on the next application, even if it
was contending for a sum which was lower than the amount stated in the previous
application. Of course, that may be all very well if the contract between the parties allows
for negative valuations but it offers little comfort to an employer whose contract does not.
The appeal
Both the contractor in Harding and the employer in ISG launched appeals, but the ISG
appeal settled before it was due to be heard. However, amongst the points raised by the
contractor in the Harding appeal1 was an argument that the fourth adjudicator did not
have jurisdiction to decide the dispute as to the proper value of the termination account
because the third adjudicator had already decided the amount properly due in respect of
the account. In making that argument, the contractor relied upon the decision in ISG,
contending that, by failing to serve a pay less notice, the employer must be deemed to
have agreed the value of the account and the adjudicator had to be taken to have decided
the value of the work carried out.
The contractor also argued in the alternative that, even if the third adjudicator had not
decided the amount properly due (i.e. because it had decided the dispute only on the
basis of the lack of a pay less notice), it had nevertheless been asked to decide that issue
and had made a decision in that adjudication, thereby engaging paragraph 9(2) of the
scheme which provides that:
An adjudicator must resign when the dispute is the same or substantially the same as
one which has previously been referred to adjudication, and a decision has been taken
in that adjudication.
In giving the leading judgment, Jackson LJ took the latter point rst. He held that the
word decision in paragraph 9(2) means decision in relation to that dispute and that
ultimately it is what the rst adjudicator actually decided which determines how much
or how little remains available for the second adjudicator. He said that Parliament could
not have intended that if a claimant refers 20 disputes to adjudication but the adjudicator
decided only one, future adjudications about the other 19 were to be prohibited. In the
present case, the third adjudicator had made no decision in relation to the value of the
account and the judge was therefore correct to interpret paragraph 9(2) in the way he did.
So far as the other ground of appeal was concerned, Jackson LJ disagreed with the
contractor that the fourth adjudicator did not have jurisdiction to decide the dispute
because it was the same, or substantially the same, as the dispute already decided by
the third adjudicator, namely the amount properly due in respect of the account. He said
that, on a proper analysis, the contractor had referred a dispute involving two alternative
issues to the third adjudicator, one relating to the failure to serve the pay less notice
(the contractual issue) and one relating to the amount properly due on the account (the
valuation issue). It was clear that the third adjudicator had only dealt with the former.
Jackson LJ said it was unnecessary to embark on an analysis of ISG. He therefore did
not think it necessary to consider what the judge had said about deemed agreement was
correct. The important point so far as he was concerned was that the passage in the ISG
1
(2015) EWCA Civ 1231; (2016) BLR 85; 163 ConLR 299
2016
Payment
57
Comment
It is regrettable that the Court of Appeal did
not take the opportunity to decide whether
the judge was right in both ISG and
Galliford Try to say that an employer, by
failing to serve a pay less notice, was to be
deemed to have agreed the amount stated
by the contractor to be due. Instead, the
Court of Appeal seems to have accepted
as the judge himself had tried to explain
in Galliford Try that a different regime
should apply in relation to nal accounts.
In contrast with interim payments where an
adjustment for overpayment could always
be made on the next interim valuation, an
employer would otherwise have no means
of challenging and adjusting the amount
subsequently.
There is no logical basis for the
distinction. There is no reason why any
deeming effect should depend upon the
type of payment application. Whether or
*VUZ[Y\J[PVU
,_WLY[PZL,
*VTTLYJPHS
=HS\LZ
SPECIALIST BARRISTERS
Adjudication
Arbitration
Construction
Energy
Engineering
Infrastructure
Insurance
Professional Negligence
Property Damage
58
Contracts
Whats new?
www.icheme.org/foc
60
Contracts
Location
Since 2007, IChemE has published contracts
specically for use either in the UK or
for international application; however,
this short form is structured so that it
may be used in any location. As with the
previously published international forms
of contract, the short form will require the
general conditions to be supplemented by
the drafting of special conditions to deal
with those matters arising out of specic
governing law/jurisdiction and/or location
of any intended project.
The general conditions have been
drafted on the basis that the contract is
in compliance with the laws of England.
In view of the wide variations in law
and practices in different countries,
advice should always be sought as to the
appropriateness of any terms, or the need
for additional matters, having regard to
the law of the contract and the law of the
country where the services are performed
or the project is situated.
Dispute resolution
We took the view that disputes are likely
to be a rare occurrence under the short
form. As a result, the approach to dispute
resolution has been deliberately simplied
and does not include clauses in the general
conditions for arbitration, adjudication or
expert determination.
The primary approach to resolving
disputes is to escalate the matter to more
senior management of the contracted
parties rather than to an external body.
If this fails then the default approach is
General conditions
The general conditions in particular have
been formulated to reect best practice
and relationships within the process plant
sector, which is generally recognised as
being far less adversarial than other parts
of the construction industry. IChemE has
always adopted the basic philosophy that
the parties should co-operate to achieve
the mutual objective of a successful project.
It is in the best interests of the parties to
deal fairly with each other and with their
sub-consultants, specialists and advisors
in an atmosphere of co-operation in order
to achieve successful solutions to the
problems that will inevitably arise during
the course of any project.
Given the relatively low cost and limited
liabilities associated with the application
of the short form, it is anticipated that the
contract can be used without change to the
general conditions. As with all contracts
published by IChemE, the institution
advises against modications to the general
conditions in order to avoid introducing
provisions that may conict with these
well-established practices and relationships.
Users should particularly be aware of the
risk of introducing inconsistencies within
the contract conditions, or provisions that
may be unenforceable. The consultants
liabilities are also considerably different to
those of a contractor and the short form
reects this by deliberately limiting the
2016
Contracts
61
Agreement
Claims Advice
Dispute Resolution Consultancy Services
Adeooersacomprehensive,independent
contractual and commercial service designed
toguideclientsthroughthecomplexitiesof
construction and engineering projects
from inception to completion.
Competence
As with all other IChemE forms of contract,
it is emphasised that the purchaser should
satisfy itself of the qualication and
competence of any potential consultants
or other service providers under
consideration. In this regard it is also wise
to seek references from clients for which
the consultant has undertaken relevant
services in the recent past.
The purchaser should also devote
sufcient time to compiling information
that will help to minimise variations in
the consultants tenders. In this regard,
the tender invitation should incorporate
a draft contract document including,
as a minimum, drafts of the schedules
ContactHeadOceon01403821770
enquiries@adeo.uk.com www.adeo.uk.com
Accredited Courses
TRAINING
MENTORING
COMPETENCIES
APPRAISAL
FEEDBACK
2016
Delay
Concurrent delay:
Time does not always equal money
Andrew Bayne, Partner, Centra Consult
63
64
Time v money
It is important to emphasise the distinction
between time and money. It is entirely
possible that an extension of time may
be due, but that no loss and expense
is payable and vice-versa. The chain
of causation should apply to loss and
expense as well. However, perhaps the
apportionment approach described in the
City Inn case is more appropriate with
regards to loss and expense?
In general, time related costs such as
preliminaries would not be payable to the
contractor during a period of concurrent
delay. The contractor would still need
to be on site for the period where its
Delay
2016
Delay
NEC mechanism
Obviously, parties are at liberty to agree to contractual provisions
as they wish. However, it is perhaps worthwhile to reect on the
mechanism in the New Engineering Contract (NEC) with regards
to extension of time. Whilst the traditional forms of contract apply
an ostensibly retrospective approach, the NEC contracts envisage a
prospective means of calculating critical delay.
NEC envisages that the contractor will submit an electronic
programme to the project manager for acceptance and that,
pursuant to this process, the parties have an agreed baseline
programme for measuring progress and the effect that any
compensation event may have upon the planned programme. Key
to this mechanism operating correctly is that the programme is
regularly updated with progress and rescheduled to ascertain the
projected completion date as the works progress.
An example
For example, after week six of the works, the progress reschedule
indicates that the completion date has slipped by one week
due to lack of contractor progress say in relation to drainage
installation. On week seven, a compensation event arises. The
contractor undertakes an assessment of the compensation event
and submits a quotation describing the time and cost implications.
The assessed effect of the delay is inserted into the programme,
which has been rescheduled up to and including week six. This
involves the creation of new activity bar(s) within the programme
and logically linking the new bar(s) to the existing activities
as appropriate and then rescheduling the programme. If the
critical path is affected, and the completion date is delayed, NEC
envisages that an extension of time should be granted. However,
when progress is rescheduled at the end of week ten, the drainage
emerges once again as a critical driving activity. Throughout the
period of the compensation event, the drainage delay has been
ongoing and was an effective cause of concurrent critical delay.
Here, a situation exists where there is concurrent delay but the
contract provides that an extension of time should be granted
with costs.
Measuring time
Clearly one of the key objectives of delay analysis is to identify
criticality and concurrency of delay events. The process envisaged
by NEC is ostensibly a time impact analysis approach as the works
proceed. This was also the methodology that was recommended
in the rst publication of the Society of Construction Laws Delay
and Disruption Protocol. One signicant drawback of this is that
it can be a very expensive way of managing time and delay on a
65
:VTLUHSX\LZ[PVUZ
It is understandable that in a situation
where concurrent delay exists that one
cause of delay may prima facie appear
to be more signicant than another.
However, if a concurrent employer liability
event has caused critical delay, an effective
cause of critical delay, then should the
principle that the employer has prevented
the contractor from completing its works in
the period of concurrent delay apply?
City Inn considers the JCT terminology
in relation to the architect undertaking a
fair and reasonable assessment. Perhaps
such an approach may have some merit in
resolving quantum where concurrent delay
exists, but should the employer retain the
right to deduct liquidated and ascertained
damages in a period it has caused critical,
albeit concurrent, delay to the works? In
such circumstances is the employer not
in fact beneting from its own failing in
being able to deduct damages and delay
the works?
Andrew Bayne, Partner, Centra Consult
andrewbayne@centra-consult.com
www.centra-consult.com
66
Risk
FCInstCES,
JGL Consulting
2016
Risk
The construction client is at risk from the wellknown triumvirate of cost, time and quality, and
it is for the client to balance these three in the
procurement stage of the project.
construction project to reduce, if not
eliminate, the requirement for an
arbitrary risk contingency. To assist with
the implementation of an effective risk
management system, the International
Organisation for Standardisation
has published ISO 31000:2009 (risk
management principles and guidelines)
to provide both guidance on the purpose
and implementation of a risk management
system and an international standard for
risk management. This document provides
a basis for the implementation of effective
project risk management by allowing the
parties to the project to identify where
any risk is best allocated between them;
identifying risk between the parties for
mitigation during the course of the project;
the framework in which risk can be
identied, analysed and evaluated; and
proposals for mitigation to be considered
for implementation as necessary.
An important aspect of risk management
is the concept that the risk is borne by
the project and the allocation of that risk
is best distributed between the parties
on the basis of who is best placed to
carry that risk, i.e. who has the resources
and expertise to best mitigate that risk to
the project.
The accompanying guide to the
ISO denes risk as being the effect of
uncertainty on objectives 1 rather than the
traditional denition a possibility of harm
or damage/nancial loss.2 This different
denition introduces the concept that risk
can be perceived as having a positive effect
as well as a negative effect. To that end,
risk should be considered between the
parties as a risk to the project, as this is
the common objective of the parties, rather
than being passed between the parties
without consideration of who is best
placed to accept that risk and mitigate it for
the benet of the project.
67
68
Risk
This different denition introduces the concept that risk can be perceived as having a
positive effect as well as a negative effect.
The management of risk during the course
of the project is an iterative process
to monitor the identied risks and the
implementation of the mitigation measures
and identify, assess and evaluate any
new risks that may arise and were not
considered in the tender process. The
introduction of the early warning system
into contracts, most notably in the New
Engineering Contract (NEC) suite, has
pointed out the requirement for a project
to identify and deal with risks that could
impact the time, quality and cost of a
project in a collaborative manner, and
to allocate risks to the party best able to
mitigate them for the good of the project.
2016
Contract Administration
69
70
Contract Administration
Notices
Many forms of contract include requirements for the contractor
to provide notices or early warning of events or circumstances
that it considers may provide entitlement to additional time or
payment within a specied time frame of the event occurring.
The reasoning behind such requirements is that the employer and
its agents need to be made aware of the circumstances as soon
as possible, in order that they may consider corrective action or
mitigation measures which may be implemented to minimise
the effects of the circumstances. Additionally, if no mitigation
Affiliate
2016
Centra Consult
17a Spylaw Street
Edinburgh
EH13 0JS
UK
+44 (0)131 441 0800
www.centra-consult.com
Ana Almeida MCE Civil Engineering PMP
anaalmeida@centra-consult.com
Consultant. Ana Almeida is a chartered
engineer with experience in project
management in the UK and overseas. Prior
to joining Centra Consult, her experience
was gained working for contractors on
multimillion pound construction projects.
Ana Almeida is currently completing her
studies to achieve an MBA.
Chris Atkinson BSc(Hons) LLM(Construction Law)
MCInstCES MCIArb
chrisatkinson@centra-consult.com
Partner. Chris Atkinson is a quantity
surveyor with over 20 years experience
within the construction industry and a
masters degree in construction law. He is
experienced in commercial management;
the preparation and defence of claims;
the preparation and adoption of
commercial control systems for contracting
organisations; and a variety of dispute
resolution processes, notably adjudication.
Chris Atkinson is on the Chartered Institute
of Building and Construction Industry
Council lists of adjudicators.
Andrew Bayne BSc MSc LLM(Construction Law) MCIOB
MCIArb ARICS
andrewbayne@centra-consult.com
Partner. Andrew Bayne is a delay analyst
specialising in the preparation of extension
73
Keating Chambers
London
WC2R 3AA
UK
+44 (0)20 7544 2600
clerks@keatingchambers.com
Alexander Nissen QC
anissen@keatingchambers.com
Alexander Nissen QC is a highly acclaimed
silk who acts for and against major
players across the construction industry
in a range of domestic and international
claims (via litigation, arbitration,
adjudication and mediation). Alexander
is a member of leading commercial set
Keating Chambers, which has unparalleled
expertise and experience in construction
law. Its outstanding silks and juniors
are specialist advocates, committed
to providing the best legal advice, in
conjunction with a practical strategic
understanding of the commercial pressures
specic to the construction industry.
74
Leach Group
Unit 10
Forest Gate
Pewsham
Chippenham
SN15 3RS
UK
+44 (0)1249 443 118
www.leachgroup.com
Simon F Fegen MRICS FAArb(Southern Africa) MCIArb
CEDR Accredited Mediator
s.fegen@leachgroup.com
Simon Fegen specialises in the preparation
and negotiation of contractual claims
on major building and civil engineering
projects. He prepares submissions,
represents clients in DAB and arbitration,
and conducts training programmes
on dispute avoidance and contract
administration. He is a CEDR accredited
mediator. He was based in Africa and the
Middle East for 30 years and works in
Africa, Asia, the Middle East and Europe.
Melvyn D Smith FCInstCES FFB
m.smith@leachgroup.com
Leach Group managing director. He has
extensive building, civil engineering
and M&E experience in the preparation
and negotiation of contractual claims.
Melvyn Smith, an experienced quantum
expert, provides advice on dispute
avoidance and contract administration,
prepares submissions, represents clients
in adjudication, and assists legal teams
QUALSURV International
8 Charles Court
Budbrooke Road
Warwick
CV34 5LZ
UK
+44 (0)1926 499750
info@qualsurv.co.uk
www.qualsurv.co.uk
David Fishwick FCInstCES ACIArb MAPM
david.shwick@qualsurv.co.uk
Director QUALSURV group of companies,
providing specialist contract commercial
management/dispute resolution services
both in the UK and internationally. Broad
experience in diverse sectors, particularly
civil engineering; energy; and commercial
building. Recent repeat commissions
include procurement/contract
management of off-shore wind farms
and renewable energy plants; claims
preparation; expert reports for
international arbitration proceedings.
Schoeld Lothian
3-7 Temple Avenue
London
EC4Y 0DT
UK
www.schoeldlothian.com
Dr Glyn Jones BSc MBA FRICS FCInstCES FCIArb
+44 (0)20 7842 0920
glynjones@schoeldlothian.com
Principal consultant experienced in all
aspects of commercial management and in
principal forms of construction contracts,
nationally and internationally. Sector
experience in construction, transport,
infrastructure and energy. Specialisms
include contract preparation, procurement,
risk and contract management, for
employers and contractors. Also
experienced in carrying out dispute
avoidance and management, involving
preparation and negotiation of claims.
Alan Williamson FCInstCES MRICS MBIDP
+44 (0)20 7842 0926
+44 (0)7703 207598
alanwilliamson@schoeldlothian.com
Principal consultant experienced
in preparation and negotiation of
claims under most principal forms of
construction contracts, both nationally
and internationally. Specialises in dispute
resolution through adjudication, arbitration,
mediation and litigation, representing
contractors, subcontractors and employers
as either claimant or respondent. Regular
contributor of construction law articles to
a number of publications. Alan Williamson
also provides bespoke training courses,
particularly upon New Engineering
Contract based contracts. Member of the
Society of Construction Law.
Construction
Solutions
Drawing on decades of experience working on some
of the worlds most complex, high prole construction
projects, FTI Consulting has a proven track record
in providing solutions that help our clients prevent,
manage and resolve construction issues.
PREVENT
MANAGE
RESOLVE
Follow us on LinkedIn:
FTI Consulting Construction Solutions
www.fticonsulting.co.uk