I thought it might be interesting to look back on highlights in the construction and engineering world over the last 12 months.
New Contract Forms
We have the new suite of NEC3, the April 2013 version, with the “how to use” booklets intended to provide guidance on aspects of NEC3 procedure.
There is also the new CIOB contract for use with complex projects that came out about the same time as the NEC3 new suite of contracts was published.
The fifth edition of the IChemE contracts was also published in 2013 (the red book) to accompany the fourth edition of the yellow book and the green book as well as the second edition of the burgundy book and the 2013 third edition of the brown book (the sub-contracting book).
BIM is due to be in the forefront over the next 12 months with numerous articles appearing during this year about it and the publication of the CIC BIM protocol and CIC Best Practice Guide for Professional Indemnity Insurance when using BIM.
NEC has endorsed the use of the CIC protocol in its “how to use” book for incorporating BIM into NEC3 contracts. Clients have, perhaps more slowly than anticipated, embraced the use of BIM, with contractors perhaps more ahead of clients. Central Government of course is driving the use of BIM forward so that it is available on their projects by the summer of 2016 onwards. This may well mean BIM gathers an inexorable impetus. It has to be said the jury is out on how it will affect a party’s legal liabilities.
There have been a number of cases on NEC3 dealing with issues such as what is meant by “any volume of defects” or a “number of defects in a NEC contract for the purpose of determining that defects have arisen for the purposes of ascertaining the costs of repairing highways, to what is meant by the words “actual costs” where the courts have concluded that they must be “reasonably and properly incurred” (see the cases of Atkins Limited v Secretary of State for Transport and Amec V Secretary of State for Defence).
The replacement for the old Buying Solutions framework RM457 is not expected to come through until April 2014, which is a pity because the old framework expired in June 2013. It has left a gap for public bodies wanting to use a Government framework to appoint consultants on a one-stop shop basis. The new framework is expected to be broader than the old one, allowing for a choice between a one-stop shop service and separately project management; cost management/CDM/Health and Safety and Design Team Services as well as for International works on a one-stop shop.
Finally there are some recent cases that are worth mentioning. First, Mitchell v Newsgroup Newspapers, which reinforces the need to comply with the courts’ new costs regime that came into force on the 1 April 2013. That is to file the appropriate cost form (known as Precedent H) on time, or face being stripped of the ability to recover legal costs from the other side.
I should not overlook the issue of whether or not a collateral warranty is now subject to adjudication, which is dealt with elsewhere in Building Blocks by my colleague Stuart Pemble. The case that has put this into play is Parkwood Leisure Limited v Laing O’Rourke Wales & West Limited.
Last, but not least there is the very recent Court of Appeal decision in Aspect Contracts (Asbestos) Limited and Higgins Construction Plc where we acted for the successful party. Alexandra Price, who was part of the team acting on this matter, has produced a longer article elsewhere in Building Blocks on this case. In brief, the Court of Appeal has decided that the limitation period for bringing court or arbitration proceedings over whether an adjudicator’s decision was correct runs from the date of payment following an adjudicator’s decision, not from the previous breach of contract on which the decision is based.
No doubt 2014 will bring a new set of highlights to comment on at the end of that year.