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The Week That Was - 21 January 2022

Published on 21 January 2022

Welcome to The Week That Was, a round-up of key events in the construction sector over the last seven days.

Court will not speculate on items of expenditure

In Hirst & ANOR V Dunbar, Mr Justice Eyre highlighted the need for a Claimant to prove its losses. The Court will not speculate on items of expenditure. 

The Claimant sought sums of £474,861 allegedly due for construction work done. The claim ultimately failed, due to limitation and the works being outside of the contract. Nonetheless, the judge considered what sums would have been awarded. 

The judge set out that in a typical case, the court would establish the work performed and, with the assistance of expert evidence, determine the value of that work. In this instance, no scope of works was provided and identifying the works carried out was complicated further by the claimant not having started works from scratch, but continuing on works from another contractor. No documents had been provided which noted the condition of the property prior to the commencement of works by the Claimant. 

While the claimant was unable to provide the documents that the court would usually expect to see (e.g. scope of works, reports, meeting minutes), they were provided with documents purportedly evidencing expenditure. The court had difficulty in interpreting these documents. Ultimately, the court was unable to untangle the payments and/or set off amounts in order to provide an opinion upon the reasonable value of works completed. 
The Court considered that the deficiencies in the material provided by the Claimant, and lack of evidence of the value of works actually completed, meant that any valuation by the court would come very close to speculation. The judge supported the contention that the burden being on the Claimant to prove their losses, which they have failed to do, that no sum would fall due. The Claimant being the authors of their own misfortune due to the deficiencies in paperwork. 

This will be a stark reminder to contractors of the need for contemporaneous records, and carefully managed invoicing.

A copy of the judgment can be found here.

London mayor calls for temporary visa scheme for the construction sector

Sadiq Khan, the mayor of London, has called for the government to introduce a Coronavirus Recovery Visa, valid for at least a year. It is hoped that the visa will provide relief to sectors, including construction, that have suffered from staff shortages due to both the pandemic and Brexit. The mayor is also calling for a regional shortage occupation list, which will allow London and other cities facing sector specific staff shortages the chance to attract and retain staff.

London's construction sector has for many years relied on EU workers. Since April 2020, London has seen a 54% reduction in the number of EU construction workers. The mayor has highlighted the importance of the construction sector to London's covid recovery plan and efforts to provide Londoner's with affordable housing. The mayor recognises the long-term ambitions of training up UK nationals to meet the demand for labour in the construction sector, but considers that action will need to betaken by the government in order to manage the short-term crisis and build a strong economy.

For further information, please click here.

Suggestion for streamlined approach to domestic building disputes outlined by TCC judge

In The Sky's The Limit Transformations Ltd v Mirza, HHJ Stephen Davies has proposed streamlined court directions for the resolution of domestic property renovation disputes.

The claim arose from a contract for the demolition of an existing single storey extension and its replacement with a new double storey extension.  The contract sum was £156,370 before variations.  After a five-day trial, including the evidence of multiple expert mechanical and electrical engineers, and building surveyors, neither party was awarded any damages. It is possible that each parties' costs of the proceedings exceeded the contract sum.

Whilst the learned Judge recognised that each case is different and that such directions may not always be appropriate, and that his proposals would do little to reduce parties' pre-action costs, he felt compelled to propose directions to try and avoid "a financial disaster for one of the parties and, even if not, likely an expensive and ultimately unrewarding result for both" in similar cases.

These proposals include:

  1. disclosure limited to documents relied upon and known adverse documents;
  2. a single joint expert building surveyor, addressing liability and quantum issues, in all cases;
  3. compulsory mediation or early neutral evaluation; and
  4. capping future costs at £25,000.

The judgment is available here.

A positive step towards negative outcomes – developer trials affordable carbon-negative homes

The developer, St Modwen, will soon complete the build phase for a trial of affordable carbon-negative homes.  The homes at Heathy Wood in Copthorne, near Gatwick, are expected to deliver a 103% reduction in CO2 emissions and reduce their residents' energy bills by 52%. Measures include improvements to insulation and ventilation, incorporating solar panels and battery storage, EV charging, air-source heat pumps, and more.

St Modwen intend to use the results of the trial to enhance a 40-home development in Derbyshire, currently in construction.

More details can be found here and here.

Robot brick laying approved by NHBC

Construction Automation, a Yorkshire based company who aim to revolutionise the housebuilding industry by developing innovative robots, have obtained NHBC accreditation for the Automatic Brick Laying Robot (or ABLR for short).  ABLR uses technology to lay bricks, blocks and mortar whilst being mounted on a track fitted to the perimeter of a house.  ABLR underwent testing and inspection for over a year by NHBC before attaining the "NHBC Accepts" accreditation.  Subject to appropriate design and installation, ABLR can now be used in the construction of new homes covered by NHBC warranty products.

Richard Lankshear, Innovation Manager at NHBC has said: “We’re pleased to be able to use our scale, expertise and knowledge to work with manufacturers and provide developers, investors, lenders and homebuyers with confidence that innovative new products and systems can meet the same high standards of quality and durability as traditionally-built homes.”

For further information, please click here.
Thanks to Charlie Underwood, Rakesh Pandit and Adrian Hurlock for contributing to this week's edition.
Disclaimer: The information in this publication is for guidance purposes only and does not constitute legal advice. We attempt to ensure that the content is current as at the date of publication, but we do not guarantee that it remains up to date. You should seek legal or other professional advice before acting or relying on any of the content.