The Week That Was - 3 December 2021
Welcome to The Week That Was, a round-up of key events in the construction sector over the last seven days.
Willmott Dixon wins contract for net-zero carbon school
Willmott Dixon has won a £21 million contract to build the new Tarleton Academy in Preston which, due to an airtight building envelope with triple glazed windows, is designed to have net-zero carbon emissions in operation.
The school will have 36 classroom and sports facilities which will include a 20-metre swimming pool, a fitness suite and a multi-use games area. It will be powered by ground source and air source heat pumps, and the roof will house 1,500sqm of photovoltaic solar panels.
The intention is that Willmott Dixon will monitor the energy performance of the new school for two or three years after handover, to ensure it lives up to expectations.
The contract forms part of the Department of Education's four-year £7bn building programme for schools and further education. Under the programme, 26 firms have been selected, spread across 22 lots covering three value bands and key English regions.
Five convicted in construction slavery gang
Five family members have been convicted this week of human trafficking offences after a sixteen-week trial at Southwark County Court.
The 16 victims had been promised £50 a day, together with free food and accommodation, to work in the construction industry. Identification documents were seized from the workers, who were placed in cramped accommodation and presented with false debts in order for their wages to be withheld.
Paul Goddard, from the CPS, said: “These individuals used their position to prey on and exploit many economically vulnerable workers who could not stand up to them….They benefited from their victims’ hard work in the construction industry promising good rates of pay to entice them to the UK before reneging on those promises and keeping most of the wages for themselves'.
For more information, see here.
Conflict of Laws and Emerging Technology
On 25 November 2021, the Law Commission issued a new paper discussing the use of smart technology within traditional contract law.
The general conclusion confirms previous views that the existing law of England and Wales is sufficient to facilitate use of smart legal contracts, without the need for reform.
Key issues have been identified in the application of 'conflict of laws' rules to the "virtual world". The Law Commission cites the difficulties pinpointing real-world locations to digital actions and digital objects as a serious challenge facing private international law in relation to emerging technology.
Starting mid-2022, the Law Commission has agreed with the government to take a fresh look at how the rules on 'conflict of laws' apply to emerging technologies. With a focus on smart legal contracts and digital assets, they hope to come to a view on whether reform is required. Key international players accelerating their digital transformation should keep a keen eye on this.
A copy of the Law Commission's paper can be accessed, here.
"High level awareness" of fire safety issues in the construction industry defeats strike-out application
In Crest Nicholson Operations Ltd v Grafik Architects Ltd  EWHC 2948 (TCC), the second defendant (an Approved Inspector) applied to strike-out a claim brought against it by the claimant Property Developers.
The Approved Inspector alleged that the Particulars of Claim did not sufficiently particularise the alleged breaches of duty and that the claim was not supported by expert evidence.
The TCC refused the strike-out application, holding that the Approved Inspector's ability to understand the Particulars of Claim must be viewed in the context of the very high level of awareness of fire safety issues in the construction industry. In those circumstances, the Particulars of Claim did not fail to disclose any reasonable ground for bringing the claim. Moreover, the claimant had taken advice from an expert before drafting the Particulars of Claim, and intended to serve this evidence in due course. As such, this case was not an extreme type of case in which striking-out the Particulars of Claim would be justified.
In addition, the TCC noted that the Approved Inspector had issued the application without warning and without first seeking clarification from the claimant. On that basis alone, the TCC would probably not have ordered a strike-out of the Particulars of Claim. Instead, the Approved Inspector ought to have issued a Request for Information pursuant to CPR 18, and was ordered to draft an Order identifying the further particulars it required from the claimant.
A copy of the judgment can be found here.
HSE prosecution results in £30,000 fine issued to quarry contractor
A quarry contractor, Breedon Trading Limited, was subject to an HSE investigation following reports that, on 15 January 2020, a blast at Cwt-y-Bugail Quarry in Llan Ffestiniog, Gwynedd, North Wales, caused rocks to land c.270m away from the blast site causing property damage to quarry facilities. These rocks landed outside of the designated danger zone, causing a quarry operative to run for cover, and put others at risk when the roof of the shed they were working in was punctured.
Breedon Trading Limited pleaded guilty to health and safety breaches, was fined £300,000, and ordered to pay £2,534.80 in costs.
This prosecution serves as a reminder for contractors to ensure that high-risk building operations are carried out in accordance with good practice and legal requirements.
For further information, please click here.
Court of Appeal confirms that professional negligence claims can proceed on extrapolated basis
In Building Design Partnership Ltd v Standard Life Assurance Ltd  EWCA Civ 1793, the Court of Appeal dismissed an appeal against Kerr J's decision to allow Standard Life to plead its original statement of case on an extrapolated basis in a professional negligence claim.
Standard Life was a developer of a mixed use development. It blamed the contract administrator, Building Design Partnership Ltd, for a sizable overspend caused by authorised variations to the building contract. The contract sum rose from £77.4 to £146.4 million). Standard Life considered the variations to be avoidable, and that the variations had resulted in delay and disruption. Standard Life investigated 167 variations and extrapolated the results across another 3,437 variations in order to make a series of specific allegations against the contract administrator.
Coulson LJ, giving the leading judgement noted that sampling and extrapolation are common in the Technology and Construction Court "as a way of corralling evidence and keeping trials within proportionate limits".
Proportionality was a relevant consideration when determining whether the claim was an abuse of process. The Court of Appeal considered that it was proportionate to plead an extrapolated claim, and that there was nothing special about a professional negligence action that would prevent an extrapolated claim from being pleaded as part of such a claim.
The Court also rejected the floodgates argument of claimants pleading undetailed claims, stating that pleading every detail remains the archetype method of framing construction disputes, but that should only ever be commensurate with the overriding objective,
A copy of the judgment can be found here.