Building Voices

In this episode, Conor Rodgers invites David Turner to discuss his recent experience advising the construction industry on nuclear projects in the UK. David reflects on his ongoing involvement with the Sizewell C and Hinkley Point C projects to discuss:

• What is driving the growth of the nuclear sector in the UK, including net zero targets and ambitions for energy security.
• The role of Great British Nuclear in identifying opportunities for new nuclear projects.
• Challenges to the construction industry in managing nuclear projects, and how those can be addressed.
• What’s next for the sector, including the new technologies on the horizon.

In this episode, Anne Thompson and Tim Atwood look at the recent TCC decision of Providence Building Services Limited v Hexagon Housing Association Limited [2023] EWHC 2965 and the meaning of the JCT termination provisions for repeated breach. They also look at the practical steps parties can take to protect themselves.

The episode focuses on:

• The key JCT clauses on repeated breaches
• The key facts from this case
• What the court considered
• What the impact is for employers and contractors alike and what steps they can take
• The possibility that it is all going to change again in the Court of Appeal

You can also find out more by reading Tim's article on termination for repeated breach and late payment under the JCT.

In this conversation between Emma Hutchinson, Aimie Farmer, Gregor Woods and Ellie Black, we discuss the ongoing impact of Reinforced Autoclaved Aerated Concrete (“RAAC”).

The discussion covers the health and safety considerations of having RAAC in a property, who RAAC claims could be brought against and what practical steps can be taken to mitigate against the risk of RAAC.

This episode covers:

• The impact of RAAC
• Health and safety considerations of RAAC
• What RAAC means for landlords and tenants and who is liable
• Possible claims brought against employers, occupiers and landlords
• What mitigating measures can affected parties take

In our latest episode Conor Rodgers and Jane Fender-Allison, both of CMS’ ICE Disputes team, discuss what you need to know about "smash and grab" adjudications.

They recap what they are, what their counter true value adjudications are and what the latest case law tells us.

In short, that case law now means paying parties in construction contracts have to be extra vigilant in meeting their obligations around payment and notices under the Construction Act regime, or face tight restrictions on when they can start a true value adjudication.

Topics of discussion include:

• What is a “smash and grab” adjudication?
• What is a “true value” adjudication – a key way for a paying party to recover from a smash and grab and restore the parties’ underlying entitlements
• What has the position been on when a true value adjudication can be kicked off?
• What the latest case law tells us – how an immediate payment obligation arises once there is a notified sum, even if a smash and grab adjudication has not been raised; and the court’s view on whether a “genuine dispute” on payment notices allows a true value adjudication to be started in the absence of payment
• Four key points to remember about when a true value adjudication can be started

To read more on this please see CMS’ update here: Smash and grab” vs “true value” adjudications: where are we now? (cms-lawnow.com)

Podcast number 18 forms part of a mini series on the Building Safety Act and takes the format of a discussion between Frances Gordon-Weeks of CMS and Wen Jin Teh of Keating Chambers.

Key points to consider are:

1. Changes brought in by the Defective Premises Act
2. Changes brought in by section 38 Building Act

To read more about the Building Safety Act, please see CMS’ updates here:

Building Safety Act 2022: overview and commencement (cms-lawnow.com)

Building Safety Act 2022: a shift in the liability landscape (cms-lawnow.com)

Building Safety Act 2022: the new approvals regime for higher-risk buildings (cms-lawnow.com)

Building Safety Act 2022: implications for leaseholders and the cost of making buildings safe (cms-lawnow.com)

The Fire Safety (England) Regulations 2022 (cms-lawnow.com)

Building Safety Act Register opens next month: a step-by-step guide to (cms-lawnow.com)

In this episode, Anne Thompson and Emma Hutchinson review key cases on termination in 2022, focusing in particular on the JCT 2016 form of contract. 

This episode gives guidance to employers to help them understand the risks and pitfalls that arise if they deviate from the contract wording on termination. 

We cover:

• where and how to serve notices of termination
• who has to serve the notices
• when the notices have to be served
• what those notices should contain, and
• what happens if an employer gets a termination notice wrong

To read more about the decisions, please see links to the judgments below:

• Struthers & Anor v Davies (t/a Alistair Davies Building) & Anor [2022] EWHC 333 (TCC) accessible: https://www.bailii.org/ew/cases/EWHC/TCC/2022/333.html
• Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC) accessible: https://www.bailii.org/ew/cases/EWHC/TCC/2022/2598.html
• Manor Co Living Ltd v RY Construction Ltd [2022] EWHC 2715 (TCC) accessible: https://www.bailii.org/ew/cases/EWHC/TCC/2022/2715.html 

In this episode we hear from David Wileman, a delay expert from Diales on the key principles of delay in construction projects (including notices, causation, concurrency and records) as well as a discussion on common mistakes by contractors and top tips for handling delay claims.

This episode is the second of a two-part podcast looking at equality, diversity and inclusion in the construction industry.  In this part two, Rae Avatar Barnett Head of People (Europe) and Sade Peters Legal Business Unit Leader for the Specialist Trading Business Group speak about their involvement in and experience of the steps international engineering and construction company, Laing O'Rourke, are taking to attract a more diverse and workforce and become a more inclusive employer, at both an organizational and an individual level.

This episode is the first of a two-part podcast on the theme of equality, diversity and inclusion in the construction industry. Statistics indicate a significant lack of diversity across the industry workforce. This is particularly problematic against the backdrop of an anticipated longer-term skills shortage when the sector needs to attract new talent. In part one Catriona Aldridge from the CMS employment team outlines key elements of the UK law on discrimination in the workplace, as avoiding discrimination is fundamental for any employer looking to attract a more diverse workforce. We'll be following up in part two with a look at diversity & inclusion in action with international engineering and construction company, Laing O'Rourke.

Podcast No.13 in the CMS Building Voices series considers a recent decision of the Scottish Courts, in which enforcement of an Adjudicator’s decision was successfully resisted on grounds of material breach of natural justice. In the matter of Van Oord UK Limited v Dragados UK Limited, the Court of Session refused enforcement on grounds that the Adjudicator’s decision had materially departed from the parties’ submissions and consequently deprived Dragados of an argument that could have altered the outcome.

While considering why Dragados was able to successfully resist enforcement on this occasion, the podcast also serves as a healthy reminder that courts are typically reluctant to do so.

To read more about the decision, please see the judgment here and our recent article here.