Projects & Construction Quarterly Bulletin (April 2022)

Welcome to the Projects & Construction team’s Quarterly Bulletin.

Spring has finally sprung in 2022 and in this Quarterly Bulletin, we touch on FIDIC’s newly launched second edition of the Green Book. We also consider new case law surrounding liquidated damages clauses in construction contracts and examine the impact of expiring PFI contracts in a podcast discussion. Finally, we look at what the government’s plan regarding cladding remediation costs will mean for developers and the new Code of Practice for fire risk assessment related to external walls and combustible materials.

If you have any questions, please get in touch with your usual Clyde & Co contact or reach us at our Infrastructure@clydeco.com.

May I claim Liquidated Damages? - The impact of new case law

Liquidated damages provisions in a construction contract act as a safety net for an employer, allowing it to recover a pre-determined amount of financial compensation, without the need for it to prove actual loss, when a project is delayed, and the contractor has no entitlement to an extension of time in respect of the delay. However, the drafting of a liquidated damages clause is not always as straightforward and clear cut as one would hope, and this can be a very contentious area as is demonstrated by the recent cases of Triple Point Technology Inc v PTT Public Company [2021] UKSC 29, Eco World Ballymore Embassy Gardens Company Ltd v Dobler UK Limited [2021] EWHC 2207 (TCC) and Mansion Place Limited v Fox Industrial Services Limited [2021] EWHC 2972 (TCC).

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What the Handback/Expiry of UK PPPs means for the market?

The expiry of PFI contracts is set to be one of the new big challenges for the industry, with the majority of PFI contracts in the UK due to expire in the 2030s. Join Legal Director Laura Coates, along with Associates Ana Bonnington and Ross Jenkins as they explore the implications of this and what key lessons can be learned from projects that have already been handed back.

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Developers face footing the bill for building safety remedial works under government proposals

The Department for Levelling Up, Housing & Communities (the DLUHC) has now set out its plan to legally force residential property developers to contribute to cladding remediation costs and provide greater protection to leaseholders.

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Does Green mean go?

There are a number of questions that spring to mind about FIDIC’s recently launched second edition of the Green Book.

1. Is the 2021 Green Book still a short form construction contract?
2. How has the risk profile changed under the 2021 Green Book compared to the 1999 Green Book?
3. Does the 2021 Green Book offer an alternative to the complex 2017 FIDIC suite of contracts?

In this article, we attempt to answer these questions.

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How do you assess the risk of combustible materials in the external walls of buildings?

This article briefly summarises the key contents of PAS 9980:2022, which is the new Code of Practice for fire risk assessments which need to be performed in connection with the external walls of buildings, which may contain combustible materials.

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Clyde Commentary: Thoughts on FIDIC

FIDIC series launch

Clyde & Co launched a new FIDIC series back in June 2021, Clyde Commentary: Thoughts on FIDIC, which is focused on both the 1999 and 2017 editions of the Red, Yellow and Silver Books (the FIDIC Suite). The series explores each of the Clauses in the FIDIC Suite on a month-by-month basis and will contribute incrementally to a guide to the whole Suite. This guide aims to provide clients with a nuanced and in-depth understanding of the main FIDIC contracts.

Read more about our FIDIC Guide here