Welcome to the ICE Disputes podcast series, 'Building Voices'.
The CMS ICE Disputes team has launched a new podcast series, Building Voices.
Building Voices is a new podcast series that focuses on the topical issues impacting dispute resolution and dispute management in the construction and infrastructure industries, as well as general developments across these sectors.
The series is hosted by members of of our ICE Disputes Team (Frances Gordon-Weeks, Conor Rodgers, Jack Cranwell, Anne Thompson and Jane Fender-Allison) and features a range of guest speakers including internal CMS market-leading lawyers, as well as external Counsel and industry experts.
Subscribe, download and listen to the CMS ‘Building Voices’ podcasts here.
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.
In this episode we hear from David Wileman, a delay expert from Diales on the key principles of delay in construction projects (including notices, causation, concurrency and records) as well as a discussion on common mistakes by contractors and top tips for handling delay claims.
This episode is the second of a two-part podcast looking at equality, diversity and inclusion in the construction industry. In this part two, Rae Avatar Barnett Head of People (Europe) and Sade Peters Legal Business Unit Leader for the Specialist Trading Business Group speak about their involvement in and experience of the steps international engineering and construction company, Laing O'Rourke, are taking to attract a more diverse and workforce and become a more inclusive employer, at both an organizational and an individual level.
This episode is the first of a two-part podcast on the theme of equality, diversity and inclusion in the construction industry. Statistics indicate a significant lack of diversity across the industry workforce. This is particularly problematic against the backdrop of an anticipated longer-term skills shortage when the sector needs to attract new talent. In part one Catriona Aldridge from the CMS employment team outlines key elements of the UK law on discrimination in the workplace, as avoiding discrimination is fundamental for any employer looking to attract a more diverse workforce. We'll be following up in part two with a look at diversity & inclusion in action with international engineering and construction company, Laing O'Rourke.
Episode description: Podcast No.13 in the CMS Building Voices series considers a recent decision of the Scottish Courts, in which enforcement of an Adjudicator’s decision was successfully resisted on grounds of material breach of natural justice. In the matter of Van Oord UK Limited v Dragados UK Limited, the Court of Session refused enforcement on grounds that the Adjudicator’s decision had materially departed from the parties’ submissions and consequently deprived Dragados of an argument that could have altered the outcome.
While considering why Dragados was able to successfully resist enforcement on this occasion, the podcast also serves as a healthy reminder that courts are typically reluctant to do so.
To read more about the decision, please see the judgment here and our recent article here.
Podcast number 12 in the CMS ICE Disputes Building Voices podcast series is a discussion in Spanish between Colin Johnson and Michael Laming of HKA, and Robin Wood and Joaquín Gotor of CMS. They discuss quantum, specifically: quantifying damages and losses.
When facing a breach of contract claim, what can the aggrieved party claim? Claims for loss of profit, loss of opportunity and loss of value may seem difficult, however, with the correct, surgical approach, they may prove very effective.
Colin Johnson, a partner at HKA London, and Michael Laming, an associate director, discuss their experience with:
- loss of value;
- loss of opportunity; and
- loss of profit claims.
Join our speakers for tips based on previous experience with these claims.
Podcast number 11 in the CMS ICE Disputes Building Voices podcast series is a review of the recent changes to witness statements coming from Practice Direction 57AC and in particular the guidance given in Blue Manchester Ltd V BUG-Alu Technic GmbH  EWHC 3095 (TCC), one of the first cases to look at the changes and requirements of the new Practice Direction in detail. This Practice Direction and the case are important for anyone involved in the process of witness statements, either taking them or giving them.
The podcast covers:
- the six key principles to take away from the case;
- the new limited role of documents in witness statements;
- the approach of the judge in Blue Manchester Ltd V BUG-Alu Technic GmbH; and
- key practical tips to make taking witness statements as smooth as possible.
To read more about the decision please see the judgment in Blue Manchester V BUG-Alu Technic here.
The case of Mansion Place Ltd v Fox Industrial Services Ltd is also recommended, with the judgment accessible here.
Podcast number 10 in the CMS ICE Disputes Building Voices podcast series is a review of the recent TCC decision in Downs Road Development v Laxmanbhai Construction which is the first to consider the subjective requirement for a valid payment notice under the Construction Act. This case is important for anyone involved in payment under construction contracts, looking in depth at the payment regime within the Construction Act and focusing in particular on the requirement for an issuing party to have a genuine belief in the sum stated as due.
The podcast covers:
- a recap of statutory requirements for payment notices under the Construction Act;
- the Downs Road decision – the need for a genuine belief in the sum considered to be due;
- why this is different to previous cases;
- what parties need to do now; and
- the implications going forward.
To read more about the decision please see CMS’ LawNow here: Payment notices and pay less notices: genuine belief required
Podcast number 9 in the CMS ICE Disputes Building Voices podcast series is a discussion between Jack Cranwell and Jay Randhawa about treaty claims for cancelled and modified infrastructure projects.
In particular, they discuss the 2020 ICSID tribunal decision of Staur Eiendom AS, EBO Invest AS & Roxy Holding AS v Republic of Latvia. This decision, although not itself related to the COVID-19 pandemic, is very relevant to the economic upheaval wrought by the pandemic and the consequent reappraisal of many infrastructure projects across the globe.
The podcast provides a preview to the CMS Annual Review of English Construction Law Developments 2021.
Podcast number 8 in the CMS ICE Disputes Building Voices podcast series is a discussion with Shona Frame, a partner in the CMS ICE Disputes team and Duncan Turner, a partner in the CMS Technology and Data team about technology and data in construction disputes. We consider the increasing amounts of data being generated by technologies on construction sites, the implications for parties to a project and what that means in a dispute, including:
- why we’re looking at technology and data in construction disputes now;
- key data management and data protection issues arising;
- the benefits in having a “data strategy”;
- how parties in a dispute can make best use of data arising from technology;
- what this means for future skills required in the construction industry.
Podcast number 7 in the CMS ICE Disputes Building Voices podcast series is a discussion with Simon Hale following his successful action in resisting an injunction in the Commercial Court to restrain a USD 32.2m bond call pending ICC Emergency Arbitration Proceedings. Topics of discussion include:-
- A review of the parties’ positions including whether the question of whether it is appropriate to grant injunctive relief is ultimately one for the emergency arbitrator;
- Why the Court decided in Yumn’s favour; and
- Interim relief under section 44 of the Arbitration Act.
To read more about the decision please see the following updates:
Podcast number 6 in the CMS ICE Disputes Building Voices podcast series is a discussion between Marcus Taverner QC and Rebecca Taverner about advocacy.
Marcus Taverner QC, a barrister at Keating Chambers, shares his views on what makes a good advocate, including:
- Good and bad advocacy;
- Different approaches to advocacy; and
- Common characteristics of good advocates.
Podcast number 5 in the CMS ICE Disputes Building Voices podcast series focuses on the early identification and management of disputes and, specifically, the use of mediation as an alternative form of dispute resolution. Shona Frame, a Partner in the ICE Disputes team, and Jane Fender-Allison, a Senior Associate in the ICE Disputes team, discuss the importance of mediation and what it can offer to parties involved in a dispute, including:
- What is mediation and recent developments;
- Why should the construction industry be interested in mediation; and
- How parties to a dispute can use mediation most effectively.
Podcast number 4 in the CMS ICE Disputes Building Voices podcast series is a whistle-stop tour of disputes avoidance issues in the construction and infrastructure sectors. Sarah Grenfell, a Partner in the ICE Disputes team, brings her many years of experience to consider key topics of discussion including:
- The importance of keeping records;
- Factors that are most likely to cause conflict on projects; and
- Early case evaluation/management.
The podcasts follows on from a seminar on the same topic, presented by Sarah and HKA earlier this year. For more information on the seminar please following this link: Disputes avoidance in the construction and infrastructure sectors – anticipating, preparing, protecting | HKA.
In the third episode of the CMS ICE Disputes Building Voices podcast series we consider the recent TCC case of Westminster City Council v Sports and Leisure Management Ltd. The case concerns the interpretation of a change in law clause and the meaning of the phrase “reasonably agreed between the parties”. During this podcast we discuss the Court’s decision and the implications of the decision on our construction clients – a key takeaway is that making a change of law clause parasitic on other provisions is likely to cause difficulties. The case also serves as a useful reminder for all parties to carefully review contracts with pandemic restrictions in mind.
Find out more about the same High Court judgment involving Westminster City Council v Sports and Leisure Management Limited in our Law Now eAlert.
In this second episode Frances is joined by Partners Lukas Rootman and Catriona Aldridge, and Associate Kathryn Moffett, to discuss the key legal and commercial issues likely to impact construction contractors in 2021.
Following a turbulent year of pandemic restrictions and market uncertainty there are many issues to consider. The following topics are included in the discussions:
- The Fire Safety Bill and the key takeaways for those working in the construction industry following the implementation of the bill later this year;
- The UK’s exit from the European Union and how this will impact the Construction industry from an employment perspective; and
- Recent technological advancements and how the construction industry can benefit from these innovations.
For more information on the topics discussed during the podcast, please read our publication Key legal issues for contractors in 2021.
In the first episode, Frances is joined by Adrian Bell, CMS Partner and Co-Head of the ICE Disputes team, to discuss the recent Secretariat Court of Appeal decision, and the issues that can arise when opposing parties try to appoint experts in the same global professional services firm. This potential conflict issue frequently arises during technically complex cross-border construction disputes where it can often be the case that finding the expert with the appropriate specialism is not a straightforward task.
The podcast follows on from the CMS LawNows that consider the TCC and Court of Appeal decisions. Links to the LawNows are set out below: