Construction Law Current Developments

Data Protection Act 1998

The Information Commissioner has served notices on 14 Construction firms due to breaches of the Data Protection Act 1998. The 14 construction firms were paying thousands of pounds just to get information on construction workers. The Information Commissioner deemed that the firms’ actions fell way below the standards expected of the Data Protection Act and the firms were sanctioned using the maximum powers available to the Commissioner. These sanctions are intended to deter firms in the construction industry from obtaining information on individuals without them knowing, thus not allowing those individuals to correct any inaccurate information held about them.

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Current Status of the proposed amendments to the Construction Act

The Local Democracy, Economic Development and Construction Bill 2008 (LDEDC Bill 2008) is expected to amend the Construction Act 1996. It is not clear when the amendments will come into force but some suggest that it may not be until after 2010 that we see the changes. The introduction of the Act would mark the end of five years of consultation. The key proposed amendments are that the Act will apply to contracts made partially or entirely orally. This is essential in the construction world, given that many construction jobs are arranged on the strength of a telephone call. The second main amendment is a new payment regime that tries to rationalise payment applications and certificates, as well as payment and withholding notices. Further, the bill proposes that the parties to a construction contract in England, Wales and Scotland provide in their contract that the adjudicator has the power to correct a clerical or typographical error in his decision arising by accident or omission. This provision must be in writing and is known as the ‘slip rule’.

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Revision to the JCT 2005 building Contracts

From May 2009, the JCT began publishing new revisions to their standard form contracts. This has continued until August 2009 and the documents will become known as JCT 2005 edition, Revision 2, 2009 or Revision 2009 where revisions are made for the first time. The documents revised are as follows: JCT Standard Building Contract, JCT Intermediate Building Contract, JCT Design & Build Contract, JCT Minor Works Building Contract, JCT Major Projects Form, JCT Measured Term Contract, JCT Prime Cost Building Contract, JCT Repair & Maintenance Contract, JCT Subcontracts in respect of the above and JCT Collateral Warranties - Guidance Notes. The principal purpose of this revision as stated by the JCT is to i) incorporate provisions in regard to the OGC's Achieving Excellence in Construction Initiative, ii) introduce new sustainability provisions and iii) modify Section 4 (Payment).

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Our Experience

The Construction Unit has a variety of experience in different sectors in both contentious and non contentious fields with international experience in international disputes. We are currently working on deals in the Middle East for consultant clients.

As well as advising on transactions which are purely construction and engineering related, we also work with the firm’s commercial property, corporate, banking and project units to provide the service which our clients expect.

We are active in advising on infrastructure projects, including water, rail and energy.

Having advised on the design and construction of Scotland’s first District General Hospital procured under the Private Finance Initiative, the Unit has particular experience in the health sector, both on PFI and non- PFI procured projects and most recently in acting for Health Facilities Scotland, the NHS organisation overseeing a £900m four year programme to build and refurbish a range of healthcare facilities for NHS Boards across Scotland. We are also involved with one of the successful bidders on the Framework Scotland project.

Recent Key Projects

• Health Facilities Scotland on a £900 m four year programme to build healthcare facilities across Scotland.
• Prospect GB Limited, (developer client) on various sites from £5-10m mixed-use residential and commercial developments at Broadway, Salford, Hunts Cross in Liverpool, Distington House in Sheffield and Newfield Grange, Carlisle.
• D A (Cheltenham) Limited, (consultant client) on 12 separate school and college projects including sites at Queen Margaret University College, Abingdon & Witney and Bradford College.
• Advisor to Boswell Mitchell & Johnston architects on £100m unit at the Gartnavel hospital site for the construction of the Beatson Oncology Project.
• Advising Medical Centres (Scotland) Limited on a series of projects including advising on procurement routes and drafting and negotiating Consultant Appointments and Building Contracts.
• Lanarkshire Acute Hospitals NHS Trust – lead advisers on the procurement of its £67.5m hospital at Hairmyres
• Greater Glasgow Primary Care NHS Trust – advising on procurement of new psychiatric unit at Stobhill, Glasgow and acute facility at Gartnavel Royal Hospital
• Lothian Primary Care NHS Trust – advising on procurement of a new community hospital
• The University of Cambridge - advising on the £72m Addenbrookes NHS PFI scheme, a joint procurement with Addenbrookes NHS Trust in relation to a new medical research facility
• Greater Glasgow Primary Care NHS Trust - negotiating building contract, professional appointments and development phase issues in relation to a resource centre in east end of Glasgow
• Lanarkshire Health Board – advising on procurement of a range of projects
• Greater Glasgow Health Board – advising on development of new laboratory facilities