UK Construction & Engineering: The cladding catastrophe car crash!

By Vijay Bange and Tanya Chadha

2020 will be forever synonymous with the global pandemic. The end of the year saw the approval of vaccines and with that a hope to an end, or at least the taming, of the Covid-19 pandemic. Whilst this has dominated the media in 2020, there has been momentum in the press and Parliament about the continuing problem of dangerous cladding.

A summary of the unfolding story board is below.

Continue reading “UK Construction & Engineering: The cladding catastrophe car crash!”

UK Construction & Engineering: Another Lockdown

By Vijay Bange

The New Year has been ushered in by an alarming surge in hospitalisations and sadly a dramatic increase in deaths from the ongoing pandemic. The Government was under increasing pressures to take action. Consequently, the Prime Minister has on 3 January announced another national lockdown, with measures which became law on Wednesday 6th January 2021.

Continue reading “UK Construction & Engineering: Another Lockdown”

Climate change and Construction-revisited

By Vijay Bange

In June 2020 I wrote an article entitled “Climate change- a wind of change for construction?”. In summary this raised the point whether increasing focus on climate change in relation to major infrastructure projects might run counter to economic efforts to counteract the effects of the global pandemic. Whilst I am writing this from a UK perspective, I dare say the issues are equally relevant to other jurisdictions.

The issue of pollution in major cities in the UK has again been highlighted by the tragic death of a child[1] whose family lived near the south circular in Lewisham. In a landmark case, the second coroner’s inquest found that the levels of pollution were above world safe levels, and that air pollution was a material cause of her death. This tragic case will bring to the fore the national debate on pollution and climate change. Continue reading “Climate change and Construction-revisited”

Follow The Money

By Vijay Bange and Tanya Chadha

  • Injunction
  • Constructive trust and / or Quistclose trust.

Deluxe property Holdings Ltd (a company registered under the laws of the British Virgin Islands) v (1) SCL Construction Limited & (2) HMRC [2020] EWHC 2865 (TCC)

Cash flow is the lifeblood of the construction industry.  This phrase, coined by Lord Denning MR, and cited relentlessly in the construction industry still holds true. In times of recession, following the cash and preserving the funds that are in dispute is crucial. There is no point in spending time and money pursuing a dispute to fight over a pot of cash that is at real risk of being dissipated. Continue reading “Follow The Money”

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”

Build, Build, Build…The New Deal: Boris Johnson Announces Plans to Rebuild Britain

By Vijay Bange

As the government eases the lockdown provisions around the country, the Prime Minister today made a speech in Dudley, the historical heart of the industrial revolution, setting out his £5 billion economic recovery plan for the country. This is the government’s plan to build our way out of the recession caused by the pandemic, and has been compared to the New Deal proposed during the Great Depression by US President Franklin D Roosevelt. Continue reading “Build, Build, Build…The New Deal: Boris Johnson Announces Plans to Rebuild Britain”

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 tenets 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”

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?”