The Week That Was – 31 May 2024

Published on 31 May 2024

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

Government powers ahead with nuclear plans

The UK Government has identified Wylfa in Anglesey as the preferred site for its third major nuclear power station, positioning North Wales to benefit economically and enhance the UK's long-term energy security. Discussions with global energy firms are underway to build a plant that could supply clean, reliable power to approximately 6 million homes for 60 years.  This initiative aligns with the UK's goal to source 25% of its electricity from nuclear power by 2050, strengthening national energy independence.

If the project goes ahead, it is expected to create thousands of jobs and attract significant investment to the region.  With its coastal location and nuclear heritage, Wylfa marks the first government land acquisition for a new nuclear project since the 1960s.  Secretary of State for Energy Security and Net Zero, Claire Coutinho, emphasised the importance of expanding nuclear capacity, combining large-scale plants and small modular reactors, to meet future energy needs.

You can read more here.
Labour – New towns rules and task force proposals announced at UKREiiF

With housing being an issue at the top of the agenda in the general election, Labour has announced its plan to create a task force to choose sites for the creation of new towns, within a year, if the party is elected to government.  Alongside this, there would be a "new towns code" which developers would be required to meet.  This code has not been finalised, but is expected to include targets or requirements for 40% of homes built to be affordable, designs to be responsive to local history and identity, sufficient transport links to town and city centres, as well as access to public services, including doctors' surgeries, schools and green spaces and parks for children.  The focus is to be on redeveloping brownfield sites, although there is some allowance made for limited release of greenbelt land under strict rules.

To read more about this, click here.
City firm apologises to court for compromising witness evidence

On 23 May 2024, Simon Lofthouse KC handed down his decision in Glover v Fluid Structural Engineers and Technical Designers Ltd [2024] EWHC 1257 (TCC).

In the judgment, the Judge criticised the claimants' solicitors for amending an expert's joint statement in "tracked changes" and deleting the metadata, so it didn't show that they had made the changes.  This approach was not consistent with the TCC Guide, and compromised the claimants' expert's independence by converting the preparation of the joint statement into a solicitor-led process.  The case highlights the dangers of solicitors getting involved in the preparation of joint statements of experts.

Read the Law Society Gazette's review of the case here.

Digital sign-ins blamed for doubling in construction cyber attacks

A report by financial advisory specialist Kroll has highlighted the increase in cyber attacks on construction companies in the last year. The industry accounted for 6 percent of Kroll's incident responses in the first quarter of 2024.  The report warns that on-the-go working patterns could be making the sector more vulnerable to cyber criminals.  Kroll has indicated construction sector workers frequently use digital sign-ins on mobile devices, making them more vulnerable to phishing lures.

This is a timely reminder to all to be vigilant when receiving emails from unknown persons and in particular clicking on links or opening documents in those emails.

You can read more here.
Second adjudication not prevented by Tomlin Order – Dawnvale Cafe Components Ltd v Hylgar Properties Ltd [2024] EWHC 1199 (TCC)

This recent decision highlights the importance of being clear about the scope of any settlement.  If a settlement is meant to settle all potential related future claims, it must say so.

The first adjudication brought by Hylgar, the developer, was for a determination as to whether Dawnvale, the contractor, was in repudiatory breach of contract.  The adjudicator found that Dawnvale had repudiated the contract and awarded Hylgar £180,322.92.  Dawnvale failed to pay this sum and so Hylgar issued enforcement proceedings. These proceedings were settled by way of a Tomlin Order, which referred to "these proceedings."  Hylgar referred a second dispute to adjudication, relating to the heads of loss flowing from that repudiatory breach.  Dawnvale tried to prevent this, via Part 8 proceedings.

Neil Moody KC, sitting as a Deputy High Court Judge, held that "these proceedings" referred to the action in which the order was made, i.e. the enforcement proceedings.  While the new claim arose from the same contract or works, it did not arise from those proceedings, and was not the same or substantially the same as the dispute heard by the first adjudicator.  The settlement therefore did not cover the new claim.  To find otherwise would mean that a referring party would be required to bring its entire claim encompassing all heads of loss at an early stage, which may not be apparent for some time, delaying matters and obstructing cash flow, which would be inconsistent with the overriding objective of the pay now, argue later principle.

While Dawnvale cannot stop the second adjudication, it remains open to them to challenge either the first or second adjudicator's decision by way of a final determination in court.

To read more, please find the judgment here.
Disclosure guidance application dismissed as 'inappropriate and premature'

In London & Quadrant Housing Trust & Anor v WPHV Ltd & Ors [2024] EWHC 1121 (TCC), the High Court has dismissed the claimants' application for disclosure guidance, deeming it "inappropriate and premature". The Court noted that the application was premature because it could not determine a significant difference between the parties' approaches to disclosure. The claimants had requested guidance on redaction and privilege and sought an expedited disclosure order, but the Court found this to be premature since relevant documents had not yet been redacted or provided. Further, the Court considered the application inappropriate as the claimants sought orders beyond the scope of a disclosure guidance hearing.

Despite the application prompting further correspondence on disclosure, the Court ordered the claimants to pay 75% of the defendants' costs, as the application was not properly brought under Practice Direction 57AD.11.

To read more, please find the judgment here.

Authors for this week's edition: Chris Brewin, Lucy Cadwallader, Chloe Carter and Emily Twomey

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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