In-house Insights: Construction

Louise Robling and Sarah Wilson hosted the fourth of Bevan Brittan’s series of ‘In-house Insights’ webinars, providing an update on construction law and key developments in case law in 2023.

Watch the webinar here.

Key takeaways:

The key takeaways from Louise’s presentation looking key building safety cases in 2023 are as follows:

• New claims that were previously statute barred but are now available to a party following the extension of limitation in respect of claims under the Defective Premises Act 2022 can be added to proceedings that had already been commenced prior to the Building Safety Act coming into force.
• For a claim in negligence, the duty of care still applied even though a claimant no longer had the proprietary interest in a defect building, and the scope of the duty is to guard against a design which would lead to unsafe structural defects which would have to be remedied.
• Developers can owe and be owed a duty under the Defective Premises Act 1972, and can recover a contribution from anyone else that might have liability for the same damage even though a claim has not be made against the developer.

• In respect of remediation orders:
  • The fact that the building complied with the Building Regulations at the point of completion of the construction is irrelevant
  • Detailed specifications are unlikely to be part of the order as that would be unnecessarily restrictive
  • A landlord’s prior knowledge of the defects is not taken into account in assessing the period of time within which works are to be undertaken
  • The FtT does not have power to impose conditions on completion, and in any event sufficient supervision already exists e.g. fire authority approvals and building control
  • Orders can be give based on a Fire Risk Assessment of the External Wall (FRAEW) and no additional expert evidence may be required.

• In respect of remediation contribution orders:
  • It will be just and equitable to make an order where leaseholders have paid for costs of remedial work prior to protections afforded to them in the Building Safety Act
  • Remediation contribution orders are essentially no-fault based
  • A key factor to determine whether an order is just and equitable is whether the Respondent was the developer of the defective premises, and/or whether it was the party providing financial support to the developer.
  • Change of beneficial ownership of a landlord or developer is unlikely to ever be a good reason not to make an RCO against that landlord or developer
  • Motivation of the party apply for an RCO and/or their potential recourse against others is irrelevant 

As far as Sarah’s presentation looking back at the case law coming through the Courts in 2023 is concerned, we saw:

• Contracts that had not been properly executed as a deed, being determined by the Court as a deed where one of the parties had failed to properly execute it.  This is particularly important for the limitation period, being 12 years for a deed and only 6 years for a simple contract.
• That contracts can be novated by conduct, even if the contract contains a NOM (No Oral Modification) clause.
• For those operating in coastal regions, parties can adjudicate projects in regard to sea pontoons; giving a contractor/subcontractor a tactical advantage in terms of being able to quickly pursue a claim and recover any claimed shortfall on its account.
• Numerous cases dealing with the content and form of notices under the Construction Act, reinforcing that extreme care must be taken to ensure that notices are valid when they are issued.
• Case law reinforcing that a badly drafted DRP (Dispute Resolution Process) will not require to be complied with by the parties, but noting that a well-drafted DRP can be hugely beneficial to the parties in assisting to resolve matters without the expense of adjudication/proceedings.

If you would like to discuss any of the topics covered in this webinar or have any questions, please contact Louise or Sarah.

Watch the webinar here.