The Court of Appeal recently considered the issue of whether an anti-oral variation clause prevented the oral variation of a written agreement. The Court’s decision may surprise some. It is fairly common for written contracts to include a term that any variation of the contract must be in writing. There are good reasons to include such provisions, namely to promote certainty and control. Parties do no want to be met with claims that a discussion resulted in some variation of their agreement. Businesses may also be concerned about their employees entering into oral agreements which are binding upon the organisation, but which it knew nothing about. The case of MWB … Continue reading Mind what you say

It has been a decade since the Housing Grants, Construction and Regeneration Act 1996 (HGCRA) was enacted in the United Kingdom (Northern Ireland was covered by the Construction Contracts (Northern Ireland) Order 1997, as amended). Drafted with the intention of increasing cash flow and addressing the high rates of insolvency in the industry, there can be no doubt that the HGCRA’s dual innovations of compulsory payment terms and an automatic right to refer a dispute to adjudication has had a (generally) positive impact on the industry’s culture. In particular, like it or loath it, the right to refer any dispute to adjudication has changed the industry landscape, providing access to … Continue reading Statutory adjudication in the Republic of Ireland

You may recall that Francis Ho, who co-authored the suite, wrote about the launch of the Chartered Institute of Building’s (CIOB) new Time and Cost Management Contract 2015. I attended the launch evening recently, where we were given an overview of the contract and provided with copies of the Contract Conditions, Contract Appendices and Contract Agreement. It’s a modular form of contract and the full suite of documents is now available for use and reference versions can be downloaded from the CIOB’s website free of charge. The website also includes copies of the Sub-Contract Agreement, Conditions and Appendices; the Consultancy Agreement; and Schedules 8 and 9, the appointments of the Time … Continue reading The Time and Cost Management Contract 2015

As someone who inevitably ends up chasing others for the physical return of hard copy signed documents, anything which can make the execution process more convenient for signatories, has to be welcomed as far as I’m concerned. With the new Electronic Identification and Signature Regulation (eIDAS Regulation) now effective, as of 1 July 2016, and with improvements in electronic signature applications such as DocuSign and Adobe Sign (formerly EchoSign) making e-signature more practical, it’s worth a quick reminder of where the UK currently stands regarding e-signatures. The eIDAS Regulation is intended to standardise provisions for electronic signatures across the EU, and it applies directly across all EU member states without … Continue reading E-Signatures – Can I sign electronically?

The next few months see the roll-out of the next major update of the popular standard form construction contracts produced by the Joint Contracts Tribunal. The various contracts are being launched in stages. First out of the box is the JCT’s Minor Works “family”. This includes the Minor Works Building Contract 2016 and the Minor Works Building Contract with contractor’s design 2016. As their names suggest, the difference between these forms is whether or not the contractor is responsible for any design of the project. While the JCT doesn’t break out sales figures, anecdotal evidence suggests the Minor Works forms comprise the publisher’s bestselling commercial contracts. Rounding off the group … Continue reading What’s new in the JCT Minor Works Building Contract 2016?

In an historic referendum on 23 June 2016, the United Kingdom voted to leave the European Union. I’ve written a blog for Practical Law on how the EU Referendum result will affect existing and future construction contracts, as well as the potential impact of the UK eventually leaving the EU. My blog can be found here: http://constructionblog.practicallaw.com/brexit-strategy-the-eu-referendum-and-construction-contracts If you have any queries on what Brexit means for construction, please contact me or any other member of Olswang’s Construction Team.

Collateral warranties exist because the courts ruled that third parties could no longer recover economic losses through the tort of negligence. That left developers of real estate projects with a sudden difficulty. Funders, tenants and buyers rely on the construction team’s performance. The disappearance of tortious liability meant that rights had to be secured somehow else. The most practical solution was to create contractual duties of care. However, that brought privity of contract to the fore. This doctrine holds only the parties to a contract can enjoy and enforce rights under it. Developers could, however, circumvent privity by obliging construction parties to enter into separate agreements with the beneficiaries. Soon … Continue reading Collateral Warranties or Third Party Rights – What Should We Use?

Attitude of the parties or contract terms? What matters more in fostering a collaborative experience on a project? It’s a common discussion but it really shouldn’t be. Genuine co-operation is hard to force. Early warning mechanisms to ensure support on issues before they become antagonistic can be abused where when linked to compensation. Successful relationships can result from draconian agreements. So culture is critical. Still, having the right contract helps. The Association of Consulting Architects (ACA) and the Association of Consultancy and Engineering (ACE) certainly think so. Later this summer, they’ll unveil the Framework Alliance Contract  currently being trialled by Futures Housing Group. Frameworks come in all shapes and sizes. Chiefly, … Continue reading ACA/ACE Framework Alliance Contract

I’m pleased to announce that the Chartered Institute of Building’s launch of its new Time and Cost Management Contract will take place at 5:00pm on 28 June 2016 at Somerset House, The Strand, London. The Time and Cost Management Contract (TCM) is a revised edition of the Chartered Institute of Building’s Complex Projects Contract, published in 2013.  TCM is designed for those projects both in the UK and overseas which cannot be effectively managed intuitively and which require for their success a more scientific approach to time and cost risk management than is usual on more simple projects. It can be used by companies, public authorities and private individuals. TCM … Continue reading Launch of the CIOB Time and Cost Management Contract

A recent judgment in the Technology and Construction Court has revealed the unintended potential mark-up associated with ambiguous or discretionary interest clauses relating to late payment in construction contracts.  With historically low interest rates remaining ubiquitous for the foreseeable future, the repercussions of not properly addressing such a clause are more important than ever. Yet, many employers, contractors and sub-contractors may be falling into this blind trap following the judgment in John Sisk & Son Limited v Carmel Building Services Limited (In Administration) (15 April 2016). The case in question concerned a relatively simple dispute for late payment between a contractor (Sisk) and a sub-contractor (Carmel).  At arbitration, Carmel had … Continue reading JCT Interest Rate: Could you afford another 3%?

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