All posts by Tanya Chadha

The reluctant party – failure to participate in final arbitration hearing because of inability to find QC

By Vijay Bange

Adjudicators and Arbitrators are occasionally faced with a situation where one of the parties refuses to engage in the process. In such circumstances tribunals are left in a difficult position to ensure fairness and have regard to due process, whilst also giving careful consideration as to whether it is just and appropriate to continue the process. Ultimately, however, the reluctance of one party to engage should not deprive the other of their legal and contractual rights.

A peculiar position came before Mr. Justice Andrew Baker, in Shell Energy Europe Limited and Meta Energia SpA [2020] EWHC 1799. This case concerned the Defendant’s application to set aside a previous order made by Teare J, made under s. 66 of the Arbitration Act 1996, granting the Claimant leave to enforce an award of arbitration dated 4 December 2019. The award in favour of the Claimant was for EUR 19,712,077.20. The seat of the arbitration was London, and it was under the LCIA Rules. The Defendant participated with the arbitration fully until the final stages; however, on 19 September 2019, with a two-day final  hearing set for 25-26 September 2019, the Defendant dismissed its solicitors and counsel, on the basis (according to the CEO) that it was not satisfied with the way the legal team had pursued or presented the defence. The next day, the Defendant retained new solicitors, and the arbitrators granted an adjournment of the final hearing to 8-9 October 2019. Continue reading The reluctant party – failure to participate in final arbitration hearing because of inability to find QC

The Prime Minister’s New Deal: Invest More and Invest Quickly

By Steve Nichol

As my colleague Vijay Bange commented in his blog post on Tuesday, Boris Johnson has announced £5bn of new funding for building and infrastructure projects in the UK.

This sounds like a lot of money, but in real terms it is not anything like enough to restart the economy in the manner suggested by the Government. In the heady days before COVID-19, Chancellor Rishi Sunak announced new investment into infrastructure in the UK totaling £600bn between now and 2025. By comparison, £5bn is nothing like what is required to “level up” the economy in the way promised by the Chancellor. In his Dudley address, the Prime Minister confirmed that the £5bn promised was an accelerated release of those funds promised by the Chancellor, but it remains to be seen whether that £600bn will ultimately be released. Continue reading The Prime Minister’s New Deal: Invest More and Invest Quickly

UK construction & Engineering: Practice and procedure: Pre-action disclosure

By Vijay Bange and Matthew Friedlander

Please Sir may I have some more…

Requests by a party for disclosure of further documents is often a vexed issue, and the motives may in some instances be tactical, and inevitably it’s a costly affair. Recently, its been reported that the insurers for HCC International Insurance Company, PLC in its dispute with Roc Nation LLC (Rapper Jay-Z’s management company), has sought a motion before a New York federal judge seeking disclosure of documents from a UK Broker, and which will entail the discovery requests to be ultimately pursued via the process in the UK courts. Roc Nation has alleged that this is an attempt to “kick the can farther down the road[1], and is objecting to the motion. Continue reading UK construction & Engineering: Practice and procedure: Pre-action disclosure

Open All Hours – Greater flexibility with site opening hours for UK construction

By Vijay Bange

Throughout the lockdown in the UK, the construction industry has been allowed to remain open for business providing that compliance with the Public Health England measures is maintained. However, most national house builders at least had taken a decision to close sites. Boris Johnson on Sunday 10th May, in his long awaited press briefing on the potential relaxation of social distancing road map, made clear that those in construction and manufacturing should go back to work, if they could.

The distancing restrictions will require those at sites to plan their works to ensure compliance with the still in force social distancing measures, and to also consider that other safety requirements also need to be put in place. Adherence to safety at work guidance remains paramount. Sites will be a different place to how they were before. The net effect will be that works may take longer, and potentially there will be risks of delays to delivery of projects. Contractors will need to do what they can to mitigate this risk. Continue reading Open All Hours – Greater flexibility with site opening hours for UK construction

UK Construction & Engineering: Lean Thinking Re-Visited

By Vijay Bange

Lean Isn’t for Lockdown, It’s for Life” was a thought provoking treatise by my fellow partner at Duane Morris, Alexander Geisler (London office co-head, author, journalist and creator of the Lean Law Suite of lean practice methods). He discussed how our “New Norm” in the COVID-19 era is forcing industries to adopt Lean Thinking principles to work efficiently and effectively. This paper seeks to consider the extent to which these concepts are applicable to the UK construction & engineering industry.

Lean Thinking as a concept has its roots in Toyota’s production system. One of the primary tenants of this concept is to aim to perfect process, as continuous improvements address root causes of quality issues, and the elimination of waste. Continue reading UK Construction & Engineering: Lean Thinking Re-Visited

Remobilising UK Construction needs Guarantees, not Guesswork- Part 2

By Steve Nichol and Matthew Friedlander 

Last week we discussed, in light of the encouragement from Robert Jenrick MP (Secretary of State for Housing, Communities and Local Government) for the construction industry to remobilise, the government’s apparent reluctance to provide confidence and clarity for the construction industry in respect of the safe operation of sites.

In the Prime Minister’s address to the nation on 10 May 2020, he re-stated that encouragement for the construction industry, where possible, to return to work. Continue reading Remobilising UK Construction needs Guarantees, not Guesswork- Part 2

COVID-19: Review of the UK Government’s Guidance on Responsible Contractual Behaviour

By Steve Nichol

On 7 May 2020 the UK Government published its “Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the COVID-19 emergency”.  Here are some of the key points arising and our analysis of the same.

It is not mandatory. The Guidance repeatedly stresses that the Government is merely strongly encouraging compliance with the Guidance, rather than suggesting that it is or should be mandatory.  However, as with previous policy announcements by the UK Government, it seems likely that public and local authorities, and indeed potentially companies such as Network Rail who are exercising delegated governmental authority, will be compelled to give greater regard and attention to the Guidance than the private sector. Continue reading COVID-19: Review of the UK Government’s Guidance on Responsible Contractual Behaviour

Remobilising UK Construction needs Guarantees, not Guesswork

By Steve Nichol and Matthew Friedlander

In yesterday’s edition of the Government’s daily coronavirus briefing, Robert Jenrick MP (Secretary of State for Housing, Communities and Local Government) relayed tales of how some local authorities have been able to continue essential fire safety work in the COVID-19 era in order to address defective and dangerous cladding in their areas.  He then went on to say:

I would urge any building owner or contractor…as soon as practicable, where it’s safe, to begin work once again.

If Mr Jenrick envisioned this statement as a call to arms for the industry to remobilise in a flurry of activity, it is likely that he will be disappointed. Continue reading Remobilising UK Construction needs Guarantees, not Guesswork

Adjudication during the COVID-19 lockdown – breach of natural justice?

By Vijay Bange and Tanya Chadha

In the UK, adjudication remains one of the quickest and most cost effective methods of resolving construction disputes.  As most people adjust to the “new normal” of working from home, an away from the usual office environment, adjudication may not be at the top of everyone’s agenda.  That is somewhat ironic given that the current COVID-19 situation is fast becoming a potential breeding ground for construction disputes.  Projects are in delay, labour and materials supply may be an issue and cashflow may become and inevitable effect of the lockdown.

The courts have shown a resolve to carry on with court business where there are live proceedings. There was however some uncertainty as to what approach the TCC would take in relation to adjudications during the period of lockdown, particularly given the fast and furious nature of the process. Would breach of natural justice arguments hold strong in adjudications pursued during this restrictive period of lockdown?  What would be the position where some relevant participants are self-isolating?  Can the adjudication process be conducted fairly, and with proper regard to the rules of natural justice? Continue reading Adjudication during the COVID-19 lockdown – breach of natural justice?

Post-lockdown and the new world order: Construction & Engineering UK

By Vijay Bange and Tanya Chadha

Social distancing measures and lockdowns have been replicated across the globe and have brought world economies to all time lows. Understandably, there is now a degree of anxiety to getting back to work. The longer the lockdown goes on for, the harder the bounce back may be. Unsurprisingly murmurings of getting the country back to work are beginning to surface.  Some manufacturers and building firms that shut down are now slowly preparing to return to work from a state of hibernation.

Aston Martin and Jaguar Land Rover have set out plans to re-open their factories early next month with strict safety measures in place. Taylor Wimpey, like some other national house builders, is planning to resume work on multiple sites. HS2 is also now resuming works on Phase one, opening 75% of its sites, with a notice to commence being approved by the government. These companies have spent time planning how they can re-start, whilst ensuring adherence with the government’s social distancing guidelines. Continue reading Post-lockdown and the new world order: Construction & Engineering UK