FW: Welcome to Construction Edge

 

- - Construction Edge June 2010 Construction Services About Roddy Gordon - Welcome to Watson Burton's Construction and Engineering Law News Welcome to the second edition of our newly re-designed construction magazine. One always wonders how changes to a well-established format might be received, so many thanks to those of you who were kind enough to say how much you liked the new publication. Continuing in this vein, this latest edition sees something of a novel departure in the content of our newsletter: in addition to the familiar caselaw updates and reports, we also include news, views and a feature by our London office partner David Jones, highlighting the crucial role of the project manager under the NEC form of contract. In a companion piece to be published in next month's edition, David will move on to consider the potential of NEC as an international contract to rival FIDIC.   I hope you find this new, more eclectic mix of updates, articles and comments both informative and stimulating. If you like what you read and wish to know more about how our construction and engineering lawyers can give your business the legal EDGE, then please call me direct on 0191 244 4308.  Roddy Gordon, Partner roddy.gordon@watsonburton.com In this edition:-   > Builder's concurrent duty of care in tort - remember the inclusion of an exclusion > Substantive relief for late payment - a point of commercial interest > Feature - NEC driven by resourcing and cost control -  the project manager rather        than the lawyers > HRH the Prince of Wales comments on the complex art of "place-making" > Opponents of "garden grabbing" welcome proposed change in legislation > International success in 2010 - Watson Burton's construction team scores! > Is it a bird? Is it a plane? No, it's Watson Burton's trainees! Builder's concurrent duty of care in tort - remember the inclusion of an exclusion     Robinson v PE Jones (Contractors) Ltd [2010] It has long been recognised that construction professionals owe clients a concurrent duty of care in tort. The reason why this matters is because the limitation period in tort can be much longer than in contract.   In this case, the court extended this principle and decided that a builder also owes its client a concurrent duty of care in tort, as well as contract, to undertake works with reasonable care.   However, the Court went on to find, on the facts, that the builder had successfully excluded from the contract the concurrent duty of care which it would have otherwise owed to Mr Robinson in tort. There is nothing to prevent such exclusion.   It is therefore important for contractors and sub contractors, when negotiating contracts, to exclude the concurrent duty in tort. In contracts executed under hand this limits liability for defective work to 6 years (12 years for deeds). View Full Story   Substantive relief for late payment - a point of commercial interest  Yuanda (UK) Co Ltd v WW Gear Construction Ltd [2010] EWHC 720 (TCC) Much ink has been spilt over this recent Technology and Construction Court decision. However, the case is significant not only for Mr Justice Edwards-Stuart's ruling that a so-called "Tolent clause" (particularly one which is non-reciprocal) does not comply with section 108 of the Housing Grants, Construction and Regeneration Act 1996. A ruling was also made regarding interest rates which is very significant in the current market where rates are so low and a number of claims are being made for late payment.   This decision has ramifications for the construction industry. An interest rate of 0.5% above base rate (or a similar amount) will not be considered to be a substantial remedy, unless there are special circumstances.  Where there is no substantial remedy prescribed by the contract, this could result in a much larger cost to a non-paying party further down the line.  View Full Story Feature - NEC driven by resourcing and cost control - the project managers rather than the lawyers    By David Jones, Construction Partner   The NEC is designed to be as flexible as possible. It can be used:   •  For work containing all or any of the traditional disciplines.   •  Where the contract has full design responsibilities, some design responsibility    or no design responsibility.   •  For competitive tender, target contracts, cost reimbursement contracts and    management contracts.   •  Both in the UK and around the world.   In some respects this results from a desire to be recognised as a broad spectrum contract. NEC relies very heavily upon Works Information which includes testing and commissioning of the works, quality assurance, working hours, health and safety requirements and site sharing arrangements. Its processes are driven by relying upon programme management tools. Query whether the conditions should first be re-drafted by project managers before being reviewed by lawyers. View Full Story     HRH the Prince of Wales gives his views on the complex art of "place-making"    With his customary penchant for stimulating debate, HRH the Prince of Wales addressed councillors and planners at Holyroodhouse earlier this month, and asked builders and developers whether they would like to live next to, or in view of, the places that they build. The Prince also warned against projects that insist on separating affordable housing instead of integrating it. But can it really be that simple? As the Prince himself went on to acknowledge, "place-making is an incredibly complex art." Would you like to comment on this? Join our First Friday Club on LinkedIn to share your comments.   Join First Friday Club on LinkedIn Opponents of "Garden Grabbing" welcome proposed change in legislation    One of the more labyrinthine aspects of this already complicated art, are, of course, the rules governing planning. These are rarely more contentious than when the debate is brought into the backyards - or backgardens - of suburbia. The Government has recently announced an intended change to the planning rules, designed to prevent the practice of 'Garden Grabbing'. Garden Grabbing involves developers purchasing large suburban properties with extensive gardens, before demolishing the existing residence and sub-dividing the prime real estate into several smaller plots. This practice was previously possible due to the fact that gardens were defined as brownfield sites for planning purposes. Critics of the policy shift have suggested that whilst it may do everything to preserve the existing character of suburbia, it will simply serve to transfer the pressure outwards to the increasingly embattled Green Belt.     International Success in 2010 - Watson Burton's construction team scores!   Watson Burton has found the back of the net in international arbitration proceedings, which involved a final account dispute arising out of a development in the West Indies. Acting on behalf of the West Indian contractor, the three strong team, Roddy Gordon, Sarah Wilson and Stephen McLellan, successfully negotiated a favourable settlement with the employer earlier this month.   Is it a bird? Is it a plane? No, it's Watson Burton's trainees!     On 17 June 2010, a few of our trainee solicitors completed a coast to coast bike ride, covering 200 miles from Whitley Bay to Maryport. However, theirs was no ordinary coast to coast challenge. Our budding cyclists completed their challenge on exercise bikes in full view of all passers-by in Eldon Square shopping centre. What's more, they were all dressed as everyone's favourite superheroes. The cycle was in support of the Zero 2 Hero campaign run by Fairbridge, which works to help young people in the most disadvantaged areas of the UK and has been the Firm's adopted charity for several years. Well done guys, and thanks to all who supported them in their challenge.   View Full Story watsON at Watson Burton Construction WebSeminar - Managing Delay Claims Wednesday, 30 June 1 - 2 pm No matter how well planned and well managed they are, most construction projects seem to undergo some form of delay or disruption. In this WebSeminar, construction associate, Kevin Anderson will outline the steps that you can take to secure and protect against any delay arising in the first place or against any potential loss as soon as a delay occurs. The seminar will look at issues of liability, concurrent delays as well as the surrounding issues of liquidated damages and the use of experts (including project managers and quantity surveyors) all involved in the process of managing progress. This WebSeminar will equip you with the knowledge required to assist in effectively managing any delay once it arises, with the ultimate aim of recovering the full value of a delay to avoid any potential loss to your business. The presentation will be advantageous to quantity surveyors, project managers, builders, contractors and all construction professionals. Employers should also take note, as this session will advise them of how their contractor should operate and thus how they should react. View Full Details - 1 St James' Gate Newcastle Upon Tyne NE99 1YQ 0191 244 4444 1 City Square Leeds LS1 2ES 0113 235 5455 Floor 29, 30 St Mary Axe London EC3A 8BF 020 7337 8300 www.watsonburton.com - - Subscribe to this newsletter at  marketing.department@watsonburton.com Unsubscribe to this newsletter at  marketing.department@watsonburton.com - The material for this newsletter is intended as a guide only. Whilst the information is correct at time of print, it is not a substitute for legal advice. Watson Burton can accept no responsibility for actions taken based on this information. -

 

 

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