Building Voices

In this episode, our experts look at a first-of-its-kind competition enforcement report produced by the CMS Competition team.

The report provides a rigorous analysis of competition enforcement in the UK, analysing all 164 of the Competition and Markets Authority’s investigations appeals to the Competition Appeal Tribunal since the early 2000s.

In this discussion, two authors of the report (Neil Baylis and Lucy Charatan of CMS’ Antitrust, Competition & Trade team), discuss building and construction highlights from the report.

The podcast covers:

• A summary of the contents of the report and how it is relevant to businesses operating in the building and construction sectors
• A discussion on how the CMA generally initiates investigations and a consideration on whether it has adopted any specific practices in the construction sector
• Types of infringing behaviour seen in the building and construction industry
• A consideration of whether the CMA has become more active in taking proceedings against directors in a personal capacity
• Lessons learnt from the report and trends to look out for in the future for the sector, including relating to ESG and labour markets

Explore CMS' UK competition enforcement report

In this episode, our experts take a look at execution formalities for deeds concerning construction documents and the possible challenges that might arise from something that seems like a mere formality but which parties often get wrong, leading to serious consequences down the line.

We also discuss the execution issues from both a drafting and disputes perspective, and cover:

• What execution formalities are and what the legal requirements are for executing a deed
• The different methods of executing a contract or deed by a company in England and Wales
• How electronic execution works (and some of the issues that can arise)
• What happens when contracts are not properly executed

Catch up on previous episodes: Building Voices | ICE Disputes | Podcast Series | CMS United Kingdom

Our experts take a look at the recent Court of Appeal decision, which revisits Providence Building Services Limited v Hexagon Housing Association Limited,  and the meaning of the JCT termination provisions for repeated breach.

They also discuss:

• what the TCC originally decided 
• how the Court of Appeal decision differs
• the impact this decision will have when drafting new construction contracts
• how the decision impacts on live projects, and
• what consequences are likely to arise in terms of construction disputes

Explore this topic further in our LawNow article

In this episode, Anne Thompson speaks to Adrian Bell and Rafal Morek about some of the key points coming out of the CMS International Construction Study 2024. The study, conducted in partnership with YouGov, surveyed 125 senior in-house counsel in the international construction, infrastructure and engineering industries, asking them about the biggest challenges of managing disputes and how those challenges can be met.

The podcast discusses:

• Trends in construction disputes based on the feedback in the survey;
• Issues that in-house counsel are seeing in relation to risk management;
• Why disputes continue to be dealt with at the end of a project;
• What the latest issues for ESG are in the construction industry; and
• The likely impact of AI going forward.

A link to the CMS International Construction Study 2024 can be found here.

In this episode, Conor Rodgers invites David Turner to discuss his recent experience advising the construction industry on nuclear projects in the UK. David reflects on his ongoing involvement with the Sizewell C and Hinkley Point C projects to discuss:

• What is driving the growth of the nuclear sector in the UK, including net zero targets and ambitions for energy security.
• The role of Great British Nuclear in identifying opportunities for new nuclear projects.
• Challenges to the construction industry in managing nuclear projects, and how those can be addressed.
• What’s next for the sector, including the new technologies on the horizon.

In this episode, Anne Thompson and Tim Atwood look at the recent TCC decision of Providence Building Services Limited v Hexagon Housing Association Limited [2023] EWHC 2965 and the meaning of the JCT termination provisions for repeated breach. They also look at the practical steps parties can take to protect themselves.

The episode focuses on:

• The key JCT clauses on repeated breaches
• The key facts from this case
• What the court considered
• What the impact is for employers and contractors alike and what steps they can take
• The possibility that it is all going to change again in the Court of Appeal

You can also find out more by reading Tim's article on termination for repeated breach and late payment under the JCT.

In this conversation between Emma Hutchinson, Aimie Farmer, Gregor Woods and Ellie Black, we discuss the ongoing impact of Reinforced Autoclaved Aerated Concrete (“RAAC”).

The discussion covers the health and safety considerations of having RAAC in a property, who RAAC claims could be brought against and what practical steps can be taken to mitigate against the risk of RAAC.

This episode covers:

• The impact of RAAC
• Health and safety considerations of RAAC
• What RAAC means for landlords and tenants and who is liable
• Possible claims brought against employers, occupiers and landlords
• What mitigating measures can affected parties take

In our latest episode Conor Rodgers and Jane Fender-Allison, both of CMS’ ICE Disputes team, discuss what you need to know about "smash and grab" adjudications.

They recap what they are, what their counter true value adjudications are and what the latest case law tells us. 

In short, that case law now means paying parties in construction contracts have to be extra vigilant in meeting their obligations around payment and notices under the Construction Act regime, or face tight restrictions on when they can start a true value adjudication.  

Topics of discussion include:  

• What is a “smash and grab” adjudication?
• What is a “true value” adjudication – a key way for a paying party to recover from a smash and grab and restore the parties’ underlying entitlements
• What has the position been on when a true value adjudication can be kicked off?
• What the latest case law tells us – how an immediate payment obligation arises once there is a notified sum, even if a smash and grab adjudication has not been raised; and the court’s view on whether a “genuine dispute” on payment notices allows a true value adjudication to be started in the absence of payment
• Four key points to remember about when a true value adjudication can be started

To read more on this please see CMS’ update here: Smash and grab” vs “true value” adjudications: where are we now? (cms-lawnow.com)

Podcast number 18 forms part of a mini series on the Building Safety Act and takes the format of a discussion between Frances Gordon-Weeks of CMS and Wen Jin Teh of Keating Chambers.

Key points to consider are:

1. Changes brought in by the Defective Premises Act
2. Changes brought in by section 38 Building Act

To read more about the Building Safety Act, please see CMS’ updates here:

Building Safety Act 2022: overview and commencement (cms-lawnow.com)

Building Safety Act 2022: a shift in the liability landscape (cms-lawnow.com)

Building Safety Act 2022: the new approvals regime for higher-risk buildings (cms-lawnow.com)

Building Safety Act 2022: implications for leaseholders and the cost of making buildings safe (cms-lawnow.com)

The Fire Safety (England) Regulations 2022 (cms-lawnow.com)

Building Safety Act Register opens next month: a step-by-step guide to (cms-lawnow.com)

In this episode, Anne Thompson and Emma Hutchinson review key cases on termination in 2022, focusing in particular on the JCT 2016 form of contract. 

This episode gives guidance to employers to help them understand the risks and pitfalls that arise if they deviate from the contract wording on termination. 

We cover:

• where and how to serve notices of termination
• who has to serve the notices
• when the notices have to be served
• what those notices should contain, and
• what happens if an employer gets a termination notice wrong

To read more about the decisions, please see links to the judgments below:

• Struthers & Anor v Davies (t/a Alistair Davies Building) & Anor [2022] EWHC 333 (TCC) accessible: https://www.bailii.org/ew/cases/EWHC/TCC/2022/333.html
• Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC) accessible: https://www.bailii.org/ew/cases/EWHC/TCC/2022/2598.html
• Manor Co Living Ltd v RY Construction Ltd [2022] EWHC 2715 (TCC) accessible: https://www.bailii.org/ew/cases/EWHC/TCC/2022/2715.html