The Week That Was – 19 April 2024

Published on 19 April 2024

Welcome to the week that was, a round-up of key events in the construction sector over the last seven days.

TCC rules on cross-enforcement of serial adjudication decisions

In Wordsworth Construction Management Ltd v Inivos Ltd T/A Health Spaces [2024] EWHC 617 (TCC), the TCC gave useful guidance on how the Court will approach the enforcement of connected, but perhaps incompatible, adjudication decisions.  Recorder Singer considered two different adjudicators' decisions, each of which found in favour of the opposite party.  The Court was asked to decide in favour of one decision over the other or, if both decisions were to be enforced, to find that they could be set off against each other. Recorder Singer considered a wide range of the arguments often put forward in requests to set aside adjudicators' decisions.

Considering the first adjudication, the Court found that, whilst the adjudicator had made an error of law by only very briefly considering counterclaims, this did not constitute a breach of the rules of natural justice.  Turning to the second adjudication, one party argued that this was a return to the issues already decided in the first adjudication.  Recorder Singer disagreed, finding that this was a different claim on similar facts.

Recorder Singer concluded that the two decisions were both therefore enforceable; but he adjourned the question of whether the awards could be set off against each other, and any further consequential matters, on the basis that he would require further submissions in order to deal with those issues.

The full judgment can be read here.

Guidance on Building Liability Orders issued in fire safety case

The Building Safety Act 2022 introduced the ability for a party to apply to the High Court for a Building Liability Order (BLO), which is an order extending certain liabilities attributed to a company to its associated corporate bodies such as parent, subsidiary or sister entities.  In an ex tempore judgment given in Wilmott Dixon -v- Prater and others, Mrs Justice Jefford confirmed that there is nothing to prevent a defendant applying for a BLO against a co-defendant's parent or a group company.

The case concerned alleged fire safety defects, and was brought against multiple defendants including Prater Limited (Prater), the cladding subcontractor, and Lindner Exteriors Holding Limited (Lindner), Prater’s holding company.

The judge held that there is no need for a party seeking a BLO to bring its claim at the same time as the primary claim, but if a BLO was claimed before resolution of the primary claim, it would be appropriate to have that claim heard and dealt with at the same time as the primary claim.  This is because similar evidence would be relevant to both claims, and it would be impracticable for the court to consider it twice.

You can read more on the judgment here.

Saudi construction investment resilient, despite reduced desert city plans

Saudi Arabia has downscaled its ambitious plan to build a 170 km-long desert city, "The Line".  Originally envisioned for 1.5 million residents, only 2.4 km is now expected to be completed by 2030, with a reduced population target of 300,000.  The Line is part of the NEOM development, a Saudi mega project. Despite this setback, Saudi Arabia's construction sector, including NEOM, continues to attract significant interest and investment. Crown Prince Mohammed has allocated $320 billion for NEOM's first phase by 2030, with substantial funding from the Public Investment Fund. UK firms like Atkins Réalis and Jacobs are involved in delivery, alongside others such as Aecom and Bechtel.  However, the change in project scope may affect employment opportunities, with some contractors reportedly reducing their site workforce due to the reduction in the city's scale.

Click here to read more.

CIC issue new guidance on designer competence requirements

The Construction Industry Council (CIC) has provided clarification on the competence requirements for designers and principal designers in relation to accessing construction sites. Part 2A of the Building Regulations (Amendment) (England) Regulations 2023 outlines the need for evidence of competence when appointing individuals for building or design work. While some confusion has arisen regarding the need for Construction Skills Certification Scheme (CSCS) cards, the CIC emphasises that possession of a CSCS card is not mandatory for designers or principal designers. Instead, evidence of relevant qualifications, professional registration, health and safety knowledge, or experience is sufficient.  The clarification aims to address misunderstandings and align with Construction Leadership Council (CLC) recommendations, ensuring that site access requirements are appropriate for designers and principal designers.  Paul Bussey, Chair of CIC’s Health and Safety Committee, welcomed the clarification, highlighting the importance of recognising professional qualifications and health and safety knowledge for site access.

Click here to read more.

Sir Robert McAlpine wins 2 Finsbury Avenue build contract

The £500m build contract for a new 750,000 sq ft project at 2 Finsbury Avenue has been awarded to Sir Robert McAlpine by the building joint venture between British Land and GIC.  The announcement was made following the developers' signing of a tenancy agreement with hedge fund Citadel.  The project, which will consist of a large 12-storey podium linking a 36-storey East Tower and 21-storey West Tower was designed by 3XN architects and aims to be completed in 2027. The developers have enlisted sustainability consultants GXN and are aiming to implement a top-rated sustainable specification, with the building expected to be all-electric and smart-enabled.  2 Finsbury Avenue is the sixth scheme to be awarded in the Broadgate framework and will form part of London's future sustainable office buildings at various campuses across the City.

More details on the project can be found here.

HS2 launch fourth TBM in London as tunnelling works accelerate

The construction of the Northolt Tunnel on the Old Oak Common to Ruislip section of HS2 has been joined by a fourth tunnel boring machine (TBM).  As has been the tradition with the other three operational TBMs, the fourth machine is named after a prominent woman in history – in this case, Lady Anne Byron, the educational reformer and philanthropist.  There are currently 8 TBMs in operation across the entire London-Birmingham route of the 10 designed by TBM specialist Herrenknecht. The remaining two are still being built and will enter operation later this year, once construction commences on the final tunnel between Old Oak Common and Euston, the project's London terminus.  In the meantime, the Government is looking to put in  place alternative funding arrangements in the private sector to complete the redevelopment of Euston station, after public funding plans were put on hold last year.

Click here to find out more.

JCT D&B 2024 has landed!

We have received the first of the JCT 2024 editions - the Design and Build Contract. Key changes include legislative amendments to reflect the Building Safety Act and the Corporate Insolvency and Government Act, new or amended Relevant Event and Relevant Matter provisions for epidemics and exercise of statutory powers. There have been further updates to the operation of liquidated damages, dispute resolution and termination (with new grounds for termination and payment provisions).  

We will continue to monitor for updates in respect of JCT 2024 and will be on hand to assist with preparing your updated schedules of amendments for use with the JCT 2024 forms and provide any training required to make a seamless transition to the new suite of contracts.

Authors for this week's edition:  Ciara Stewart, Bryce Jones, Tom Butterfield and Joshua Green

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.

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