Blog Author: Victoria Peckett – CMS When rectifying contracts to fix drafting mistakes, what happens if the parties disagree on what was meant? Construction contracts are often so voluminous that it can be easy for mistakes to creep in when putting them together and for the executed contract not to reflect what the parties think they have agreed in all respects. Often these mistakes can be sorted out by agreement — either the parties will amend the erroneous parts in manuscript before dating them, or…

Blog Author: Peter Hibberd The recent Court of Appeal case of Mears v Costplan Services (2019) EWCA Civ 502 is seen by some to once again raise, amongst other things, the issue of whether contracts should precisely define what constitutes practical completion. Practical completion is sometimes contrasted to substantial completion and even practically complete. However, none of these terms requires work to be completed in all respects before it is certified or is deemed to occur. As stated in Mears, ‘If there is a patent…

Blog Author: Joe Bennet – Associate and Alistair McGrigor – Partner, CMS A Court of Appeal decision in March has provided authoritative guidance as to when “practical completion” of construction works will be achieved. The existence of patent defects which are more than trifling will be sufficient to prevent “practical completion” and the intended purpose of the works is of relevance only in determining whether such defects are trifling. This considerably narrows the approach adopted by the TCC at first instance which allowed greater scope…

Blog Author: George Eyre – Hardwicke It is common practice for parties in the construction industry to undertake work under a letter of intent before the contract is formally executed. This practice ensures that design can be undertaken, materials can be procured, the site can be prepared and, ultimately, work can begin notwithstanding ongoing contractual negotiations. However, letters of intent often form the basis of disputes and their contractual status can be unclear. For example, letters of intent have been: held to have no contractual…

Blog Author: Hazel Boland-Shanahan A top judge came out of retirement to help decide a crucial question around interim payments and adjudications, as Hazel Boland-Shanahan explains. Confusing case law on interim payments led to the rise of smash-and-grab adjudications. The Court of Appeal judgement in S&T (UK) Limited v Grove Developments provides reasoned clarity as well as other helpful guidance. Just because the sum stated in a payment certificate or default payment notice has become due, does not mean that it represents the true value…

Blog Author: Charlie Woodley Research from HKA unveils the true complexity of causation and provides thought-provoking insight that illustrates how digitalisation can achieve dispute avoidance by proxy or reduce their severity and prevalence. Information technology is critical to our ability to manage complexity, inform decision-making, improve productivity, and reduce uncertainty, thereby mitigating risk. But technology alone will not suffice and broader digitalisation and transformation of organisations, supply chains or industry require investment in people, process as well as technology. Each must be considered equally, and…

Blog Author: Mark Wilkins – Fenwick Elliott Concurrent delay is an issue which continues to be a topic of much debate. Marc Wilkins explores how recently, the spotlight has turned to the enforceability of clauses which seek to allocate the risk of concurrent delays. In last year’s Annual Review Jeremy Glover reported on the decision of Mr Justice Fraser in North Midland Building Limited v Cyden Homes Limited¹. In July of this year the case came before the Court of Appeal². The dispute concerned a…