The Week That Was - 23 July 2021
Welcome to The Week That Was, a round-up of key events in the construction sector over the last seven days.
Shifting focus from Dispute to Resolution - Support for compulsory ADR grows
The Civil Justice Council's 12 July 2021 report concluded that compulsory ADR is compatible with Article 6 of the ECHR, provided the ADR is not "disproportionately onerous" and "does not foreclose the parties' effective access to the courts". Further regulation would only be needed for more costly forms, such as mediation. To encourage the use of ADR, the CJC recommended moving away from adverse costs orders to the more severe strike out of the claim or defence, as in breaches of other orders.
Unsurprisingly the Civil Mediation Council is supportive, although they do stress the expertise (and cost) required for successful mediation. Rather than a low or no cost alternative, mediation is a justified expense which saves costs in the longer term by resolving approximately 80% of cases and narrowing the issues with those that do not settle at that stage. The CMC suggests that greater education is needed to encourage the use of mediation pre-action and proposes an automatic referral on issue.
Subsequent assignment outside scope of JCT Design and Build Contract (2005)
In the case of Aviva Investors Ground Rent Group GP Ltd and another v Shepherd Construction Ltd [2021] EWHC 1921 (TCC) (9 July 2021) a subsequent purchaser was unable to bring a cladding claim regarding student halls in Cambridge, due to the specific detail of contractual provisions regarding assignment. Since the JCT Design and Build Contract (2005 edition) was agreed in July 2007 between Camstead Ltd and the defendant builder, the freehold was transferred to the "Hotbed companies" in 2009, then onto the Claimant in 2012. Camstead entered into a deed of assignment with the Claimant and issued proceedings, to which the Claimant applied to be joined.
This was struck out as the assignment was invalid. Firstly, a bespoke amendment required 14 days' notice be given to the defendant, which had not occurred. The right to bring proceedings could only be assigned by a transfer from the employer, and so did not cover an onward transfer. In any event, the assignment allowed the transferee to "step into the shoes" of the employer, and not to bring its own claims.
Free training implemented in effort to address labour shortage
The Skills Centre has offered guaranteed training and job interview opportunities across five sites in an effort to address the mounting labour shortage in the construction industry.
In a partnership with major employers in the industry, hundreds of training places are being offered across a three-week programme targeted at people who are either unemployed or currently earning under £16,000 a year. The Skill Centre has confirmed that all candidates are guaranteed a job interview at the end of the training programme and there is the opportunity for the programme to turn into full apprenticeships.
For more information, please see here.
Regional contractors call for fairer competition post COVID-19
The regional lobbying group Construction Alliance North East ("CAN") has called for local contractors to have a fairer chance at being appointed and not to lose out to large national contractors as the industry recovers from the COVID-19 pandemic.
Given the impact of COVID-19 and the ongoing shortage of both materials and labour as the industry reopens, CAN is concerned that small and medium sized contractors will suffer further hardship if they miss out on tenders moving forwards. In order to address this, CAN has implemented an 'Intelligent Procurement policy' aimed at securing local workforces, advocating spending in the North East region and ultimately "enabling development at a local level, while increasing overall output".
For more information, please see here.
Covid-19 Self-Isolation "unsustainable" for construction companies
Demand for construction workers has increased almost to a 20-yer high as construction workers across the UK are being told to self-isolate after coming into contact with someone who has tested positive for Covid-19. Construction companies have reported difficulty with planning and assigning jobs to construction workers as more and more are being "pinged" by the NHS mobile telephone App and directed to self-isolate.
Current UK Government guidance indicates that, from 16 August 2021 onwards, those who have been fully vaccinated will not have to self-isolate after coming into contact with someone who has tested positive for Covid-19.
To read further, please click here.
How Artificial Intelligence is improving construction
Construction News has published a special briefing with details and information on how Artificial Intelligence is improving construction.
One of the examples provided is a discussion as to how Arup has developed a machine-learning tool on a project in Shanghai, China, to assist with addressing the city's flood and river pollution issues.
In the UK, Mace is working with a start-up called Disperse to capture digital records on a number of its projects. 360-degree images are captured by operatives walking around a construction site, which are then uploaded to the Cloud and processed using Artificial Intelligence. Progress is then reported back to Mace on a weekly basis.
To read the special briefing, please click here.