Construction know how

Planning permission: Who’s responsible for it?

This article first appeared in Construction News. The recent case of Jean-François Clin v Walter Lilly & Co. Ltd [2018] EWCA Civ 490 confirms that, without express terms to the contrary in the contract, the employer will usually be responsible for obtaining planning permission for the works it wants carried out. However, for certainty, you […]

GDPR: 5 ways to ensure you’re compliant

This article first appeared in Construction News. Companies need to look past the endless emails to ensure they are taking the necessary steps to comply with the new rules. By now you’ll be extremely bored of those emails popping up in your inbox and telling you that even your clients are about to stop talking […]

Another review of the Construction Act and payment

In January the Government completed two consultations regarding construction in the United Kingdom, the first of these was a review of the operation of changes to the payment mechanisms and adjudication under the Construction Act and the second was a review of retention in the construction industry. The purpose of this article is to talk […]

The end of “Smash and Grab” construction adjudications?

Construction contract employers who are aggrieved at having to pay out an interim application in full (because they forgot or made mistakes with their payment notices) may now no longer be stuck with that outcome for long, following the recent decision of Grove Developments Ltd v S & T (UK) Ltd handed down recently by […]

Construction case comment – adjudicating when the contract works as a whole are excluded operations

The Technology and Construction Court (TCC) has recently issued guidance on what activities are excluded from the statutory adjudication process under s.105(2) of the Housing Grants (Construction and Regeneration) Act 1996 as amended under the Local Democracy Economic Development and Construction Act 2009 (the “Construction Act”) and on what basis a court may order a […]

GDPR: Direct Marketing update

An area of some confusion among clients, now bracing themselves for the arrival of the GDPR, is on what basis they can continue to market themselves to customers: is fresh consent required, or what are the alternatives?  With the 25th of May fast approaching, this short article explains that the new restrictive form of consent […]

Carillion lessons to be learnt

It has only been a few weeks since Carillion went into liquidation and suddenly one of the biggest construction and service companies in the country is gone. In this article, we give some practical advice on how best to protect yourself if you are in contract with a company, or about to enter into contract […]

Get your notices in!

Below is an early Christmas gift in the form of some practical advice for construction professionals in the UK in light of Adam Architecture Ltd v Halsbury Homes Ltd [2017] EWCA Civ 1735. The case involved Adam Architecture Ltd (“Adam”), an architectural practice, and Halsbury Homes Ltd (“Halsbury”), a property developer. In 2015 Halsbury was […]

Consultations on payment issues in the construction industry

It is as much the case today that “cashflow is the life blood of the building industry” as it was when Lord Denning coined the phrase over 50 years ago in the Court of Appeal judgment of Dawnays vs Minter (1971). Slow and uncertain cashflow is a significant contributory factor to a high incidence of […]

Concurrent delay – the position is now “crystal clear”

The High Court has confirmed that risk of concurrent delays in a construction contract can be specifically allocated to the contactor. In an important decision on concurrent delay and the prevention principle, Mr Justice Fraser has seen fit to reinforce the general principle under English law that “contracting parties can allocate risk as they see […]

Claim first time or lose the right to claim

One question that is often asked, when a client ends up in adjudication, is do I have to run all of my defences in the adjudication? In the recent case of Mailbox (Birmingham) Limited v Galliford Try Building Limited (formerly known as Galliford Try Construction Limited)[1] the court had to consider this very issue. The court […]

Adjudication – fit for purpose – or is there another way?

It has been nearly 20 years since the world was introduced to statutory adjudication through the pithily titled Housing Grants Construction and Regeneration Act 1996 and save for minor tinkering around the edges it has not changed. In this article, we look at whether adjudication is still fit for purpose and the alternatives to adjudication, […]

The limits of insurer’s subrogation rights against co-insureds and third parties

The Supreme Court recently handed down judgment in the matter of Gard Marine and Energy Limited v China National Chartering Company Limited [2017] UKSC 35 and ruled, by a majority of 3:2, that a contractual requirement to maintain joint insurance includes an implied term which precludes any claim by owners against the demise charterer, or […]

Unilateral communications between a party-appointed arbitrator and counsel

In an interesting decision in the Technology and Construction Court in March 2017, the Judge (Mrs Justice Jefford) considered a challenge by an unsuccessful party in an ICC arbitration. The Dispute The dispute arose from a contract to construct a power station in Kabul, Afghanistan. The Prime Contractor and the Respondent in the arbitration, Symbion […]

Dispute resolution in a future EU / UK trade “deal”: what are the likely costs of avoiding indefinite European Court of Justice jurisdiction?

In most commercial negotiations, discussions about dispute resolution procedures are usually left until last. The parties don’t like to poison negotiations by talking about how they resolve disputes before they even reach agreement. But the future resolution of disputes in any eventual EU/UK agreement has exercised both sides already in the embryonic negotiations. This is […]

Employment status

Given the recent high profile cases involving Uber, CitySprint and the like, the true employment status of purportedly “self-employed” individuals has come under the spotlight. So what is genuine self-employment and what is a worker or an employee? And why does it matter? What are the categories of employment status? There are three categories of […]

Adjudication: recoverability of claims consultants’ costs

In Octoesse LLP v Trak Special Projects Limited [2016] EWCH 3180, the Technology and Construction Court (TCC) decided that the costs of claims consultants assisting in adjudication enforcement proceedings can be recovered as disbursements, assuming that those consultants acted in the adjudication. Facts Following a successful adjudication in favour of Trak Special Projects Limited (“Trak”), […]

The new Pre-Action Protocol for Construction and Engineering Disputes

Pre-Action Protocols, tailored for specific types of dispute, have been a feature of the litigation landscape for many years. They represent good practice and compliance is mandatory. A party runs the risk of costs sanctions if it fails to observe an applicable Protocol. One of the main objectives of Protocols is to encourage an early resolution […]

Recent developments in the construction insurance market: additional protections for consultants, contractors and third parties?

There is a new dawn for construction insurance following introduction of two Acts of Parliament in August 2016. With the introduction of the Insurance Act 2015 (“IA 2015”) and Third Parties (Rights against Insurers) Act 2010 (“TPRAIA 2010”), English insurance law has undergone the most significant development since the inaugural Marine Insurance Act 1906 (“MIA […]

Brexit and construction: no need to panic

It is just over 3 weeks since the UK voted for BREXIT and matters have been moving quickly, at least in the world of politics. This article is written as part of a collection of articles in the GD Online special edition on BREXIT and examines the key issues in construction in the UK and […]

Settlement agreements and construction contracts: the right to adjudicate

The right to adjudicate a dispute under a construction contract at any time is a powerful tool.  Understandably, parties are reluctant to pursue a claim if the only viable route to do so is to commit to the time and costs of Court or arbitration proceedings.  A decision to commence a construction adjudication (under statutory […]

Employer’s claims under FIDIC Conditions of Contract

The recent Technology and Construction Court decision in J Murphy & Sons Ltd -v- Beckton Energy Ltd [2016] EWHC 607 (TCC) provides a useful illustration of the approach to Employer’s claims under the FIDIC Conditions under English law. The judgment will be of particular interest to users of the FIDIC suite who adopt English law […]

Different methods of dispute resolution in construction disputes

The construction industry is regarded as one of the most conflict and dispute ridden industries, which has resulted in it being one of the most claim orientated sectors. Traditionally, parties would enter into litigation, often a costly and long winded means of resolving a dispute. Over the years, various methods of alternative dispute resolution (ADR) […]

Adjudicating multiple disputes

By its nature, adjudication is a rapid process. However, the need to run multiple adjudications in tandem often arises. The recent case of Deluxe Art & Theme Limited v. Beck Interiors Limited [2016] EWHC 238 (TCC) has clarified whether, in the context of adjudications under the Scheme for Construction Contracts, the same adjudicator may simultaneously […]

Construction adjudication update: discretion of an adjudicator

Goodman Derrick’s construction group has successfully acted for a party in an enforcement action in the Technology and Construction Court. This was the first time the Court has had to grapple with the jurisdiction of an adjudicator to decide upon another adjudicator’s jurisdiction, as set out in the Notice of Adjudication. Penten Group Ltd v […]

Interpreting limitation and exclusion of liability provisions

Last month the Judge in charge of the Technology and Construction Court handed down Judgment in Persimmon Homes Ltd & others v Ove Arup & Partners Ltd & another [2015] EWHC 3573 (TCC).  The Judgment concerned in part the interpretation to be given to limitation and exclusion of liability provisions within Arup appointments/warranties. It is […]

Penalty clauses in construction contracts

Earlier this month the Supreme Court gave judgment in two combined cases concerning the law relating to contractual penalty clauses. In Cavendish Square Holdings BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67, the Supreme Court had the opportunity to review the law on penalties for the first time since the […]

Construction adjudication update: oral contracts and Wycombe Demolition

A recent decision of the Technology and Construction Court has highlighted the increased latitude an adjudicator enjoys, now that oral contracts are within the statutory adjudication framework. In order for the adjudication provisions in Part II of the Housing Grants, Construction and Regeneration Act 1996 (“the Act”) to apply to a contract, the agreement in […]

Adjudication – a refresher course

Many of you who are involved in the construction industry and property development will have heard the word ‘adjudication’, some of you may even have been unlucky enough to have actually been involved in an adjudication. In this article we seek to outline the basic principles and process of adjudication and explain what to expect. […]

Party Wall Act Update: Counter-notices and Statutory Duties

The Technology & Construction Court (in the County Court sitting in Birmingham) has clarified the purpose of a counter-notice issued under section 4 of the Party Wall etc. Act 1996 (“the Act”), and considered the scope of the statutory duty imposed by the Act. Background In Bridgland –v- Earlsmead Estates Limited [2015] EWHC B8 (TCC), […]

Enforcement of interim binding Dispute Board decisions

International construction projects frequently use an industry form known as the FIDIC Conditions of Contract.  Although the contracts vary, the differences are not significant for the purposes of this article. The FIDIC Conditions of Contract for Construction (where the design is undertaken by or on behalf of the Employer) are known as the “Red Book”.  […]

Significant changes to company law in the UK, Small Business, Enterprise and Employment Act 2015

The government’s aim in introducing the Act is to enable small businesses to innovate, grow and compete. The hope is also that internationally it will endorse the UK as a trusted and fair place to do business. The Act received Royal Assent on 26 March 2015 and is set to have a significant impact on […]

Counterclaim struck out but allowed to stand as a Defence

In the recent case of Cockell v Holton (No 2) [2015] EWHC 1117 (TCC), which was a claim arising out of works to a listed building following a fire, the Judge refused to grant the Defendant permission to pursue a significant Counterclaim, but allowed him to amend his Defence to include the allegations contained in […]

Adjudication – to be (bound), or not to be?

The recent case of Khurana v. Webster Construction Limited [2015] EWHC 758 (TCC) highlights the need for care when agreeing to be “bound” by an adjudicator’s award. Adjudication is widely used in the construction industry to resolve disputes. It has various advantages over court proceedings, in particular speed and cost. One potential disadvantage is that […]

Does the conclusivity of a JCT Final Certificate unlawfully fetter a party’s right to adjudicate?

Where a project is governed by a JCT form of contract, the Final Certificate is intended to ensure that disputes arising after practical completion are resolved with a degree of finality and speed. The usual provision is that a party has 28 days in which to challenge the Final Certificate, once it has been issued. […]

Top 5 New Year resolutions for HR practitioners

***** Stop Press: Katee Dias was recognised as a “Star Legal Writer” by the The Lawyer for this article. ***** Katee Dias Employment Lawyer Goodman Derrick Top Five HR Resolutions As January is often seen as the time for instigating change, we thought it would be helpful to consider some possible New Year resolutions for those of […]

Goodman Derrick’s Construction Partners Attend the Inaugural Conference of The Peruvian Society of Construction Law

The Peruvian Society of Construction Law (“SCL”) held its inaugural conference at the Universidad Del Pacifico in Lima on 9th and 10th April 2014. The SCL has not been long constituted in Peru and so it was gratifying that some 300 delegates attended the Conference. Goodman Derrick partners John Wright and Richard Bailey attended; Richard is the current Chairman of SCL UK and Vice President of the European Society of Construction Law.

Construction Industry Payment and Adjudication Act 2012 Comes into Operation in Malaysia

Adjudication is a well established method of resolving disputes in the construction field in the UK, Australia, New Zealand and Singapore. Malaysia have followed this lead by passing the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”). CIPAA is now in force and John Wright’s briefing is available by clicking here. John is a Construction Partner at Goodman Derrick with specialist knowledge and experience of international construction arbitration.

Should Merger Control Be Repatriated To The UK (And All Other Member States)?

Since 2012, the Government has been conducting an audit of EU powers (or “competences” to use the jargon) with a view to seeking whether their repatriation to the UK in appropriate cases.  In a recent consultation, it has got round to asking interested parties on about the current division of regulatory responsibilities between Brussels and […]

Potential Pitfalls of Digging Deep

Subterranean excavations may be an increasingly popular method of extending a property, but such developments also carry potential pitfalls. Planning controls do not usually apply to a development that does not affect the external appearance of a property, but means of redress still exist for neighbours who are adversely affected by basement excavation works, whether […]

A Review of Employment Law Reform in 2013 and 2014

As with 2013, there will be no rest for employment law advisers, employers and HR practitioners in 2014, with further legislative change on the agenda.  Many of the changes hail from the government’s Red Tape Challenge following its publication of the report “Progress on Reform” on 14 March 2013, which detailed the intended timetable for […]


In 2011, the Internet Corporation for Assigned Names and Numbers (ICANN, the professional body for domain name registration) launched the new generic top level domain (gTLD) programme to permit the introduction of new top level domains on the internet. The move, which has attracted much publicity, will allow web addresses to end in a whole range of new domains (such as .app, .sport, .accountant) beyond the likes of .com, and .net.

Important Changes to English Litigation Costs – Part 2 (Costs Management)

New rules on costs management are intended to benefit litigants by ensuring that the legal costs of fighting a case are proportionate to the issues in dispute. On the face of it this sounds like it must be a positive step, however the reality is that the changes may not be as beneficial as would initially appear to be the case.

Agency Workers – Tribunal Decides “Swedish Derogation” Lawful for Maintaining Pay Difference between Permanent and Agency Workers

An Employment Tribunal has decided that a temporary work agency which transferred a group of agency workers off zero hours contracts onto guaranteed hours contracts did in fact comply with the Agency Workers Regulations 2010 and that the Swedish Derogation could be relied upon [Bray and others v Monarch Personnel Refuelling (UK) Ltd ET/1801581/12 and others].

Reorganising the Regulation of Financial Services in the UK: The Financial Services Act 2012

1st April sees the introduction of a new structure for the regulation of financial services in the UK. Is its rolling out on April Fools’ Day just a bit of quirky Britishness or a true indication that we would be fooling ourselves in thinking that a mere re-organisation could prevent a repeat of the banking and financial crisis?

Extension of Permitted Development Rights

At the end of last month the Government announced a number of changes to permitted development rights, including allowing the change of use from offices (Class B1(a)) to residential (Class C3) without the need for planning permission. The intention of the new scheme is to make best use of existing developed sites and facilitate speedier conversion of redundant office space into desirable residential accommodation.

Validity of Post-Acquisition Restrictive Covenants

In a recent case, the Court considered the issue of whether covenants in a share purchase agreement amounted to penalties and whether restrictions were an unreasonable restraint of trade.

Important Changes to English Litigation Costs – Part 1

In Shakespeare’s time, lawyers adopted a “no fee, no breath” approach. In spite of the still widely held view that lawyers will do anything for money and nothing without it, “no win, no fee” arrangements have become commonplace in recent years in English litigation. However, a series of controversial changes are shortly to be introduced which, depending on one’s viewpoint, may reduce access to justice for some, whilst increasing it for others and place some losing parties in a fairer position, but some in a worse one. Jonathan Haydn-Williams explains the current position and the imminent changes.

Executive Remuneration: Changes in 2013

There are a number of company law proposals expected to be implemented in 2013. These include reforms relating to executive remuneration and the introduction of the new employee-owner status

Employment Law – What to Expect in 2013

The Government has a wide variety of new legislation currently going through Parliament, which it intends to bring into force next year. This should make for a very interesting and challenging 2013 in the employment and discrimination arena

Excessive Director Remuneration

Court of Appeal overturns High Court Decision on Unfair Prejudice

Competing Holiday Requests

Many staff will want time off over Christmas, and it’s not always possible to accommodate every request. So its important to ensure you have a sensible system for deciding who get to take holiday.

When Might a Cap on Liability be Unenforceable?

A recent decision in the Technology & Construction Court has highlighted where liability caps will be viewed as unenforceable in cases where there is an ongoing obligation under the contract to maintain professional indemnity insurance.

Rules on Employee Rest

Read here for a summary of the rules regarding rest breaks that should be given to workers.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) received royal assent on 1 May 2012. The primary purpose of the bill was to reform the civil litigation costs and funding framework, but a number of other changes were also included which may have wide reaching consequences for businesses in England & Wales and their directors and senior officers.