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

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”

Lean Isn’t For Lockdown, It’s For Life

Remote working has put distance between lawyers and clients, but it has also reconnected them

By Alex Geisler

05.05.2020

We didn’t have much time before the Coronavirus lockdown to wonder what it’d be like. If we’d had more time to think about it, maybe we’d have been fearful. What would social distancing mean in a work context? Businesses would have new and urgent problems, but how would stakeholders engage, collaborate and solve them? How would external lawyers support businesses with these new and urgent needs? Even if we could travel to clients’ offices, there’d be no-one there. Would lawyers become disconnected from businesses?

This would be one way of looking at it. But a better way would have been to view it as an opportunity, and anyone who did so would’ve been proved right. If the lockdown has taught us anything, it’s that people will always adapt. As with anything in life, if you can’t change your situation, you have to adapt your personal response to it. In this case, the adaptation was a shift towards leaner working methods, and lawyers have played their part.

For me, this confirms my long-standing belief that ‘lean lawyers’ exist everywhere. These are folks with lean instincts and matching work methods. I know a great number of lean lawyers here at Duane Morris, and I see examples of lean practice in all corners of business. Whether these people call their methods ‘lean’ matters not. They might use words like client-oriented, solution providers, effective, efficient or even nimble. Or they might just call it knowing the businesses they serve and giving good client service. Regardless, these are all synonyms for lean practice.

Then came the lockdown, and the community of lean practitioners grew significantly. This was commendable and inevitable. Businesses have existential problems and need quick actionable advice. Suddenly, of necessity, businesses and their lawyers have had to find leaner methods to deal with almost every daily task.

Let’s put this in a context. Suppose a routine project produces an unexpected hiccup. Pre-lockdown, this might have justified internal stakeholders and external advisers all jumping on planes, trains and automobiles, to have in- person meetings. As we discuss in Lean Adviser[1], these events can be well planned and executed, or they can be wildly inefficient and ineffective. Now suppose the same issue arises during lockdown. The solution won’t be a road trip next week, it’ll be a virtual meeting today. Special consideration will have to be given to meeting goals, sequencing and structure, as well as to what materials to pre-circulate and how to capture output. The lockdown lean effect isn’t just the elimination of travelling time, now the participants have to think about refining almost every task for remote working.

Pre-lockdown, a multi-party, in-person meeting was an accepted norm. Participants had the luxury of creating beautifully crafted work product to present. They’d throw a bunch of papers into document bags and onto laptops, and get on the road. The meeting would often be long, and attendees might grandstand, improvise, or even fade. Often the participants would go their separate ways to reflect on the issues, and maybe send follow up reports. Decisions got deferred. In that setting, it’d be a challenge just to track the issues, navigate the papers and access the key data. How many meetings have you seen come to a standstill when somebody says “you know what, why don’t we all go ahead and take a break, get some fresh coffee while Kevin looks in the document bags or Sally makes some calls, to see if we have that report?”.  Sound familiar? Try doing this in a remote working setting and it starts to look very clunky.

Virtual meetings are different, they’re shorter but need more and different preparation. They demand good structure, key materials, clear agendas and well-defined goals. This extra time spent in preparation delivers shorter and more productive meetings. Attendees have a shared focus, key issues are isolated and decisions are taken. As with meetings, so with reports. More prep time, but a better product. Sure, it can be more difficult to produce a short report, but it works way better than the superficially impressive long form. Not only do people actually read it, but they alight on key points without having to find them buried in the text.

In all these ways, the business of doing business has changed. New methods have been found, and business people and lawyers have become leaner. This gravitation towards lean practice isn’t new, nor is it a temporary bout of modernity. For as long as I can remember, well before I called it ‘Lean Law’, I’ve seen clients rewarding lean behaviours with repeat business. Then they began voicing it, and it only got louder. Now clients use RFPs to demand better methods from law firms.

If finding new methods is the first step, then developing a lean mind-set is what follows. When this is over, business people won’t forget, or lose their appetite for remote working, crisp reporting or quick solutions. With one or two notable exceptions, almost every business that survives the pandemic will be significantly poorer, and looking for ever greater cost savings and efficiencies. This is a perfect storm for change and those who gravitate towards lean lawyering will find that their skills are in demand more than ever.

[1] A series hosted by Law.Com focusing on lean practice methods

 

COVID-19: New Protections For Commercial Tenants – Are Tenants Now ‘Safe’?

By Milan Patel

01.05.2020

The UK Government has recently announced further steps to protect commercial tenants from aggressive rent collection by landlords including a ban the use of statutory demands and winding up orders where a company cannot pay their bills due to COVID-19 and preventing landlords from using commercial rent arrears recovery (CRAR) unless 90 days or more of rent is unpaid.  These measures support the existing ban on landlords evicting commercial tenants.  All of these measures will remain in effect until at least 30 June 2020.

Does that mean commercial tenants can now relax?

Definitely not.  These measures are temporary and do not alter the terms of the lease.   Once they are lifted, landlords will be free to employ such collection methods again and while some landlords have deep pockets, many more do not and almost all will have investors and/or funders to satisfy so it is highly unlikely that unpaid rent will simply be ignored for long once these protection measures end.

So what should commercial tenants be doing now?

Continue reading “COVID-19: New Protections For Commercial Tenants – Are Tenants Now ‘Safe’?”

Employee Refusal To Return To Work in face of COVID-19 ‘Threat To Safety’ – What Is Your Response?

By Nic Hart

01.05.2020

The effects of the Coronavirus pandemic on the workplace continue.  It is undeniable that the potential litigation arising out of COVID-19 will be far reaching and there will be several areas that Employers need to consider now and when the return to work phase commences in earnest.

In a matter of months the Coronavirus pandemic has not only changed the way millions of employees work but also the way they may now view the work place, particularly how safe they feel within their workplace.

Health and Safety claims may become a real issue for employers as employees either leave or propose to leave, refuse to return to work or take (or propose to take) appropriate steps to protect themselves or others from what they believe is serious and imminent danger from infection. Continue reading “Employee Refusal To Return To Work in face of COVID-19 ‘Threat To Safety’ – What Is Your Response?”

COVID-19 Job Retention Scheme – Summary of Updates to UK Gov Guidance

By Nic Hart

30.04.2020

Whilst I am very mindful of furlough fatigue, there have been further updates to the Government Guidance on The Coronavirus Job Retention Scheme – both How to Claim (short form and long form) and the Guidance. None of these have substantively changed but there are points to note in each, which are as follows.

The How to Claim (short form) deals with some of the practicalities of claiming. For those yet to do so please note that you need to submit your claim in one session – you cannot save it and return later. Sessions will time out after 15 minutes of inactivity.

There has been guidance given on what steps to take following a claim;

  1. keep a copy of all records, including:
    • the amount claimed and claim period for each employee
    • the claim reference number for your records
    • your calculations in case HMRC need more information about your claim
  2. tell your employees that you have made a claim and that they do not need to take any more action
  3. pay your employee their wages, if you have not already.

It must be stressed that Employers should record and retain documentation at all stages of the furlough process, both to be compliant with the requirements of the Treasury Direction but also to ensure that if there is any audit undertaken by HMRC they have the requisite records set out in the Guidance. Continue reading “COVID-19 Job Retention Scheme – Summary of Updates to UK Gov Guidance”

MAC Clauses & COVID-19: A Free Pass For Lenders?

By Drew Salvest

28.04.2020

The Scenario:

A client is prudently engaging with its bank to put in place a credit facility to address working capital needs which it anticipates might grow due to the Covid-19 isolation measures causing its customers to reduce requirements for its services and to pay more slowly than during less distressed times. As the motivation for this client to enter into the facility was its potential exposure to the risks to general economic conditions arising from the pandemic, the client was understandably concerned about the lender’s insistence on the inclusion of a “Material Adverse Change” or “MAC” representation and event of default.

The client’s question to us, after vain attempts to remove the language and tepid protestations from its relationship manager that such clauses “are rarely relied upon”, was whether it had any reason to be concerned.

To be fair to the lender, MAC events of default are rarely relied upon to enforce an event of default. However, the Covid-19 pandemic and the government ordered lockdown is having an unprecedented impact on the UK and the global economy. One has to consider whether the changed circumstances arising from this event might have a similarly unprecedented change in the approach lenders take in limiting losses in their loan portfolios. More importantly, if it does, will a typical MAC clause assist them? Continue reading “MAC Clauses & COVID-19: A Free Pass For Lenders?”

Is COVID-19 A Contractual “Get-Out-Of-Jail-Free” Card?

By Sue Laws

28.04.2020

COVID 19 is having a massive impact on supply chains and business continuity and, post lockdown, questions will be asked about who pays for this. The knee-jerk response of many businesses is that the pandemic is a unique, unforeseeable “Act of God” and that businesses which have furloughed staff or been forced to close during the lockdown or have had difficulties with their own supply chains or customers reducing purchase volumes, have no liabilities to or remedies against others for the consequent losses sustained. The reality is that on a case by case basis, businesses already adversely affected by this pandemic may find that contractual claims are being made against them or that they have a route to mitigate their losses by looking at their own contractual or statutory rights.

Key to the analysis which will be carried out is a bit of “jargon-busting” and debunking some commonly held views: Continue reading “Is COVID-19 A Contractual “Get-Out-Of-Jail-Free” Card?”

Is Coronavirus The New Asbestos? Steps For Mitigating Litigation Risk

To mitigate the risk of future mass tort litigation, we look at some practical steps which businesses can take before re-opening their doors

By Sharon Caffrey & Alex Geisler

24.04.2020

This is a hypothetical case study. It’s set in the future, and it’s about a Coronavirus mass tort case. Our trial opens like this:

“Ladies and gentlemen of the jury, I represent the family of Mr Smith. The facts of the case are that he died of Covid-19, and that he was in three commercial locations during the infection window. 1) He went to work 2) He stayed at a hotel 3) He shopped in a store, and these are our three Defendants. Mr Smith travelled alone in his car to these locations, and no-one else in his family was sick before he broke home isolation to go to these places. All three of these Defendants reopened for business to make money, and one of them is where Mr Smith was exposed to the deadly virus. These are the facts of the case, and they are not in dispute.”

Aside from borrowing the cadence from Aaron Sorkin[1], does this sound far-fetched? Well, consider this. Businesses will reopen and people will leave the relative safety of home isolation. Some will get sick, and tragically some will die. The question is not whether there will be litigation, it is what will the ground rules be? So, imagine that you’re a Defendant on this imaginary docket, and ask yourself this, what are my possible defences?

Continue reading “Is Coronavirus The New Asbestos? Steps For Mitigating Litigation Risk”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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