Construction Law Conference 2019
This conference, chaired by Kim Franklin QC, covers a wide range of topical issues including: recent case law on the liability of building inspectors, the increasing role of dispute boards and the highly topical issue of building information modelling (BIM).
All the speakers are experts in their fields and regular speakers at conferences.
9.30am - 10.15am: The Liability of Building Inspectors
Kim Franklin QC, Crown Office Chambers
Approved Inspectors provide professional building control services for developers under the Building Act and 2010 Regulations pursuant to agreed terms of appointment. But do subsequent purchasers have a claim against Approved Inspectors if the property breaches the Building Regulations and/or is unfit for habitation?
The scope of Approved Inspectors’ duties to subsequent purchasers in tort, under the Defective Premises Act 1972 or for fraudulent misrepresentation has been considered recently in the cases of Herons Court v NHBC Building Control Services Ltd  and Zagora Management v Zurich .
This session will consider:
- The development of this area of liability since Murphy v Brentwood
- The requirements of the Defective Premises Act 1972
- The elements necessary to establish liability against Approved Inspectors
- The up-to-date position on the authorities, including appeals to the Court of Appeal
10.15am - 11.00am: Claims Against Construction Professionals
Tim Chelmick, 4 New Square
Claims against construction professionals frequently give rise to vexed issues. Such claims can be factually complex and large amounts of expert evidence are often brought to bear in these cases - quantifying the recoverable loss can be challenging.
This session will aim to cut through the morass of case-law, and identify the key principles which have emerged in recent years. Topics covered will include:
- Determining the scope of the relevant professional’s duty
- What standard will require to be met in order to establish breach?
- Causation - what needs to be proved
- Quantification of loss
- Expert evidence - dos and don’ts
11.15am - 12.00pm: Dispute Boards
Jeremy Glover, Fenwick Elliott LLP
Interest in Dispute Boards has never been greater.
The FIDIC 2017 Editions and NEC 4 both give prominence to dispute boards as a dispute avoidance tool. How are dispute boards working? Is there a place for them domestically and do they have the teeth to justify their existence?
This session will cover:
- The key aspects of the DB role under FIDIC, both standing and ad hoc, and under NEC
- The role of lawyers in the process
- How the dispute avoidance role is discharged
- How to refer a dispute to such a board
12.00pm - 12.45pm: Building Information Modelling: A (Legal) Ticking Time Bomb?
May Winfield, BuroHappold Engineering
Building Information Modelling (BIM) was mandated for all centrally procured UK government projects from April 2016.
It has been widely adopted by both public and private clients, both in the UK and worldwide. The UK has recently seen the first BIM case law, Trant v Mott Macdonald, though it is widely accepted that disagreements and disputes relating to BIM are ongoing on an unknown number of projects.
Despite the widespread adoption of BIM, the Winfield Rock Report (written by Sarah Rock and May Winfield) revealed in 2018 that there was a perceived and likely actual, gap in knowledge and understanding within the legal community on this subject.
This session will discuss the current legal and contractual position of BIM, common causes of disputes and upcoming developments including:
- Current BIM standards and legal position
- BIM in standard form contracts
- The common risks and disputes in projects using BIM
- Upcoming developments impacting the legal and contractual issues of BIM
12.45pm - 1.00pm: Questions on Morning Session
2.00pm - 2.50pm: Claims under Construction Contracts
Mark Clinton, Irwin Mitchell
This session will cover the array of claims that can arise under construction contracts, from delay and disruption to concurrent delay and the remedies that may be available.
The session will include:
- Claims for delay and disruption - problem areas
- Dealing with concurrent delay
- What are global claims and are they permissible?
- What do the standard forms require and what are the consequences of non-compliance?
- Exclusive remedies provisions
2.50pm - 3.40pm: Wood v Capita and Construction Contracts
Max Wieliczko, HFW
This session considers the extent to which the Supreme Court's Decision in Wood v Capita  marks a significant shift in the correct approach to the interpretation of construction contracts.
The session will include:
- Provide a recap of the basic principles of contract interpretation
- Act as a reminder of limits of contract interpretation
- Consider the different conceptual approaches adopted historically to the interpretation of contracts
- Summarise the Decision in Wood v Capita
- Ask whether the Decision marks the demise of the importance of the 'factual matrix'
- Review whether the Supreme Court's Decision in Wood v Capita helps us resolve ambiguity in contract wording?
- Consider MT Højgaard v E.ON  as a case study of the application of Wood v Capita
3.55pm - 4.45pm: Closing Address: Practical Completion - Where Are We Now?
Dermot Woolgar, Crown Office Chambers
The concept of practical completion is of fundamental importance. It is, however, rarely defined in construction and engineering contracts, and when undefined its meaning can be elusive.
For employers and contractors, it is critical to know what must be done to achieve it - and what need not be done. For project managers, employers’ agents and other certifiers of practical completion, it is vital to make accurate and correct assessments.
Economic interests, if not aligned, make this an area ripe for dispute.
This session will examine:
- The recent observations of the Court of Appeal concerning the meaning of practical completion in Mears v Costplan
- Earlier leading cases concerning practical completion: what is their status now?
- What is the relevance of a patent defect?
- What in practice is a ‘trifling’ defect?
- Is it enough that the employer can use the works for their intended purposes?
4.45pm - Close: Questions & Answers
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