Completing and updating your company's Person with Significant Control Register

As of 26 July 2017, it has been a legal requirement that limited companies and limited liability partnerships maintain a Person with Significant Control Register ( PSC Register ) so why is it, after all this time, when I look up a company at Companies House...

Having a contract in writing: why you need one and why it's a good investment

Many business deals are concluded by “Gentleman’s Agreements”. These can work for people and businesses - until there is an issue or uncertainty. Unfortunately, deals and relationships in business can, and do, go wrong for many reasons....

Is the supply and delivery of concrete a construction operation?

In a recent High Court case, this question was asked in respect of the enforcement of an Adjudicator’s decision. Only contracts that fall within the definition of “construction operations” fall within the Construction Act and therefore can...

Construction services VAT reverse charge

Many in the construction industry were unaware of the significant change, which was due to take place on 1 October 2019, relating to how VAT is charged in the construction industry. The good news for them is that the implementation of the change has been...

Holiday pay for permanent workers who work part of the year

A recent Court of Appeal decision (Harpur Trust v Brazel) has shown how holiday pay must be calculated for term time, casual or seasonal workers on irregular hours, and zero hours workers. It could have implications for the construction industry where...

Will you need to be licensed to be a builder?

A task force has recently been set up to look at whether a form of mandatory licensing for the construction industry should be brought into effect. This followed a report in July 2018 which suggested that licensing would improve quality and increase...

Has the SPV failed to pay you?

Development companies often set up a Special Purpose Vehicle (‘SPV’) when they wish to develop a property. These are usually limited liability companies. They are set up to protect a holding or investment company from claims if the project goes...

Can you trust Building Inspectors' certificates?

In a construction project, a Building Inspector examines the works to certify that they comply with the Building Regulations. A Final Certificate is issued confirming that they have fulfilled their duties under the Regulations. The certificate is often...

New low cost adjudication service

The Technology and Construction Solicitors Association (TeCSA) has launched a fixed costs service for low value adjudication claims. By low value, TeCSA means claims up to £100,000, excluding VAT and interest. Often, parties are put off from referring...

Are you paying your CITB Levy?

The Construction Industry Training Board (CITB) Levy is collected to provide training to people who work in the construction industry. Many companies that operate in the industry, especially new companies that have just been set up, are unaware of this...

Talk to the experts - they really can help

We were approached by our client, a company specialising in the fabrication and installation of steelwork, in early 2018. They had been engaged as a sub-contractor to carry out steelworks at a site in Croydon. The works had been completed but they were...

You for MEES and MEES for you

The government’s drive to tackle climate change continues, estimating that 18% of commercial properties hold the lowest Energy Performance Certificate (EPC) ratings (F and G). Since 1 April 2018, the Minimum Energy Efficiency Standard Regulations...

Dedicated to developers

The General Permitted Development Rights (GPDR) currently allow for some commercial property, such as offices, to be converted into residential units, without the need to go through the full planning application process. Birkett Long has a dedicated...

The impact of a 'no deal' Brexit

What could the impact of a ‘no deal’ Brexit be for the construction industry? With less than four months to go until the UK exits from the European Union (EU), the construction industry still faces uncertainty as to what is actually going to...

Who has to obtain planning permission?

In most cases, planning permission will already have been obtained prior to any construction contracts being entered into. However, occasionally planning permission may not have been obtained. There may then be a question as to which party should be...

Adjudicating the true value of an interim payment

Everyone in the construction industry should know that it is vitally important for parties to contracts to serve the correct notices relating to interim and final payments. A party wanting to be paid must serve its application. The party paying must serve a...

Is time ticking on your right to be paid?

As you are probably aware, there are time limits known as “limitation periods” within which claims governed by English law must be brought, after which the right to bring a claim can be lost. The limitation period for a claim for breach of...

Two insurances: Which one pays?

Insurance provisions in a construction contract can be complex and confusing. There is public liability insurance, employer’s liability insurance, professional indemnity insurance and project specific insurance.  The project specific insurance...

Payment notices

Clarification from the courts The Construction Act gives contractors the right to be paid at certain points in the contract, such as interim or stage payments. It does, however, stipulate that certain procedures must be followed. A recent case has...

26.25 million euros remedial work!

Beware the 'fitness for purpose' clause.  In every construction contract there is a standard to which the building work must be carried out.  In the JCT Form of Contract, the general obligation is to carry out and complete the works...

Is it a van?

What constitutes a van for employment purposes? You may think the question is simple, but with potentially significant levels of tax at stake, getting an answer to which HMRC will agree, is vitally important   RSM UK explains more: Although the...

Delays...who pays?

Concurrent delays could leave you out of pocket Sometimes delays are inevitable, especially in more complex construction projects.  But will the contractor always be entitled to further payment for the extra time spent on site?   In many...

A new version of NEC contracts introduces major changes

Hot on the heels of the updated JCT contracts comes publication of the new version of the NEC suite of contracts, NEC 4.  This replaces the NEC 3 contract, which was published 12 years ago.  The new suite includes new forms of contract, such as the...

Employment rights All change for sub-contractors

With the publication of the Taylor Review “Good Work” Report at the beginning of July, we see a number of proposals for reform of employment law.  Of particular interest are the proposed changes to the classification of employment status and...

Think twice if you don't want to go to mediation!

Mediation is an alternative method of resolving disputes and involves an independent third party helping to negotiate a settlement.  It’s a process that the courts are eager to encourage, as Peter Allen explains. In the past the courts have, on...

PHE commissioned the ONS to analyse suicide statistics

Public Health England (PHE) is an agency of the Department of Health, with a brief to advise and support government, local authorities and the NHS in a professionally independent manner. PHE is  responsible for making the public healthier and reducing...

JCT 2016 building contract changes

The 2016 JCT building contracts have been released over the past few months and the updated Standard Building Contract suite was released on 22 September 2016. This suite has now replaced the 2011 Standard Building Contracts and all subsequent amendments....

Practical protection before you enter a contract

When entering into a contract parties often get so involved in negotiating terms that they fail to consider who the other party is and what they are worth.  Let’s say you are offered a £1 million contract on which you believe you can make a...

Planning permission and copyright

Selling or purchasing land with planning permission has many advantages.  As there are no intellectual property rights in the planning permission itself, anyone can use it because the permission belongs to the land – not to the party that obtained...

Avoiding copyright infringement when developing land where planning permission is already granted

Selling or purchasing land which already has planning permission granted has many advantages for the parties involved. As there are no intellectual property rights in the planning permission itself, anyone can use it because the permission belongs to the...

How a £300,000 contract could end up costing you £40million!

Letters of intent With a letter of intent signed and with negotiations dragging on over what may appear the less important part of the contract, it may be tempting to get on and start the job before the formal contract has had its ‘i’ dotted and...

Can I take a photo of the Eiffel Tower?

When you're next visiting London, taking in the sights and admiring all that the city skyline has to offer, you might be surprised to learn that many of the buildings you see are in fact protected by a registered trademark.   Famous buildings such...

A nod and a handshake

Our last construction newsletter featured a case that highlighted the fact that the courts will honour a variation to a contract, even if it was only a verbal agreement. The case in question was Globe Motors v TRW Lucas Verity Electric Steering, in which...

The launch of Birkett Long's new regulatory team

In our last construction newsletter we gave details of a case where two directors were sentenced to imprisonment for breaches of health and safety. Such cases seem to be more and more common.   In recent weeks Southern Water was fined...

Joint Contracts Tribunal 2016

The Joint Contracts Tribunal (JCT) publishes standard forms of contract for use in the construction industry. At last count, there were over 100 construction- related contracts published by the JCT and it has now announced that new 2016 versions of...

What is overage and how can you enforce it?

Demand for new housing and increased development has lead to an increase in overage agreements. Owners of land with the benefit of valuable planning permission or land which has potential for future development need to be aware of “Claw Back” or...

Claim settled...without even knowing!

Over the last few years a number of cases in which parties attempted to make claims have been defeated on the basis that they have been settled already.    In construction cases, the parties should be mindful of this when they are negotiating...

Time to reconsider liquidated damages

It is common practice within the construction industry for damages to be paid by a contractor who fails to complete work on time.  These are often called liquidated and assessed damages or delay damages and the clauses to which they relate are referred...

Tough health & safety law could mean imprisonment

The sentences for breaches of health and safety law have become much tougher over recent years.  The courts have levied a number of six-figure fines against companies as well handing down some prison sentences.  Although most of these are...

Getting paid for non-written instructions

Many forms of contract state that contractors or subcontractors who receive instructions orally rather than in writing will not be paid for the work they do as a result.  Formal contracts often contain a procedure that says any oral instructions...

A good outcome for our client

By way of a very brief overview, the claimant in this dispute had two opportunities to get its claim right, but it failed to do so.  It also failed to correctly serve the re-pleaded particulars of claim on the defendant.  As a result, the claim was...

Payment through adjudication...not insolvency

Changes to the Housing Grants Construction and Regeneration Act were thought to make winding-up proceedings possible when a party failed to pay an interim certificate.  But that thinking appears to be flawed! The amount certified in an interim...

Make sure your interim payment applications are clear

As most people are now aware, ignoring an application for payment will not make it go away!  The amount claimed on such applications will usually become the amount that becomes payable if it is ignored.  This happens even if the paying party does...

SMEs encouraged to tender for public procurement work

For many years, it seemed that small and medium enterprises (SMEs) were being pushed out of being able to tender for public procurement work, especially in the construction sector.   However, the introduction of the Public Contracts Regulations 2015...

Building and refurbishment projects - new regulations introduce significant changes

The Construction (Design and Management) Regulations 2015 came into effect on 6 April 2015 making sweeping changes to previous CDM regulations.  The former exclusions for small projects no longer apply, which means that care homes and professional...

Adjudication can get you paid

As everyone is now well aware, following the correct valuation process for payments due under a construction contract is critical.  If you fail to follow the correct procedure then the paying party can often end up having to pay monies that it does not...

Construction litigation in practice

I act for a local company that is the defendant in a construction dispute.  One of its suppliers is claiming that it supplied goods and services to my client, worth in the region of £50,000. You’re probably wondering what “goods and...

Zero carbon homes policy scrapped

An unexpected announcement from the new Conservative Government sees the target for zero  carbon homes scrapped. The 2016 policy, and the accompanying Allowable Solutions carbon offsetting scheme, has been dropped and is to be replaced by the...

Is Essex feeling stable and confident?

Most involved in construction are hoping for a period of stability to be able to plan for and build the housing and commercial premises that the county and the economy require.  The Queen’s speech outlined the Government’s intention to...

Debt recovery and adjudication

We were instructed by a specialist plastering company with regard to outstanding monies owed to them for work done. We noted that the main contractor had not followed the proper valuation procedure and so we wrote a letter of claim. That did not obtain...

Procurement issues

We recently acted for a client who carries out maintenance works for a London Borough. They had worked for them for many years and the work makes up most of their business. Without any warning they were informed that no further work would be sent to them. We...

Legal Update: Beware - Bear Scotland

Many readers will have seen coverage recently around the calculation of holiday pay for workers and employees.  Eagle eyed readers may even have seen reference to the case of Bear Scotland.  What does all of this mean and how might it affect your...

Key changes to CDM regulations

The Construction (Design and Management) Regulations 2015 (CDM2015) came into effect on 6 April 2015.  These make significant changes to the CDM Regulations and apply to all construction projects in Great Britain.  Transitional arrangements apply...

Sell the new homes!

Once a developer starts building out a scheme, the most important step is to sell the new homes.  This is important not only for the developer but also the purchasers. Buying a new build or converted property “off plan” requires a swift...

Health & safety prosecutions

In 2013/14 the Health & Safety Executive prosecuted 1,187 offences which led to 674 cases and 636 convictions.  Its conviction rate was 94% and the total fines imposed were £18 million; enforcing authorities also issued 13,790 Enforcement...

Acting as an expert?

If you are acting as an expert in legal proceedings then you need to make sure that you do not fall foul of the judge hearing your case, as a number of experts recently have! Quotes include: “… there is no explanation which exonerates Mr Smith...

Public procurement timescales to be reduced

The Public Procurement Directive 2014 is likely to be brought into UK law towards the end of 2014 and will bring significant changes to the tender procedure for public contracts. The major change is that the timescales for submitting tenders will be...

Remedial work - recovering the costs

When a building contract comes to an end, there are often snags or remedial works that are already known about or become known about shortly afterwards.  A number of questions can arise, such as: does the contractor have to return to site?  Can the...

Consequential loss exclusion clauses

There is a great deal of confusion about what is meant by the term “consequential loss”. Case law has established that there are two kinds of losses that flow from a breach of contract: loss that arises naturally from the breach (“direct...

That's blocked our sewer!

The recent case of Northumbrian Water Ltd-v-Sir Robert McAlpine Ltd has offered some relief for developers and builders. McAlpine's had been sued for loss and damage caused by an escape of concrete from one of their building sites into one of...

Adjudication can be quick and efficient

If you have experienced adjudication first hand you will be aware that whilst the outcome is somewhat unpredictable, it is a quick and efficient way of dealing with a construction dispute.  The timescale is 28 days from the submission of the dispute...

'Absolute' and 'skill and care' obligations

We see more and more contracts where contractors give an assurance that complete works will meet a particular specification, believing that reasonable skill and care will achieve that specification.  But that is not always the case! A recent case...

Can you stop a call on a bond

Bonds are used in construction contracts to ensure that the contractor carries out and completes the works in accordance with the building contract.  If the contractor does not do so then the employer can simply call on the bond provider for the value...

Debt recovery for specialist flooring contractor, RHL

We recently acted for specialist flooring contractor RHL in respect of an adjudication relating to monies owed for work they had carried out. The work was carried out at a leading department store on Oxford Street in London. This was a particularly complex...

Sustainable shouldn't make businesses feel green!

While it is now clear that the UK must do more to create its own energy, there is no consensus as to how and where this energy should be produced.  Despite news that MS Power Projects Ltd is to build south-Essex’s first major solar farm in...

Public sector procurement changes and SMEs

Each year local authorities in England spend around £230 billion on contracts for goods, works, services, utilities, defence and security so there are plenty of opportunities out there for businesses . However, for many small and medium sized...

Are you aware of your roots?

It has generally been thought that landowners will not be liable for damage caused to neighbouring properties by the roots of their trees unless they are aware of the possibility that such damage is being caused and fail to act.  However, in the recent...

No pay? Walking off site?

Strange as it may seem, the fact that you have not been paid does not mean that you are automatically entitled to stop working.  If an unpaid party to a contract simply leaves site they could be facing serious consequences.  They will be in...

Are you up to date with TUPE?

The regulations are intended to protect employees whose employer changes hands due to the sale of that business.  In addition, employees who are assigned to a particular contract are protected when the provider of that particular work changes (known...

Change to CITB levy deduction from 6 April 2014

Historically a contractor seeking to recoup the CITB levy from its sub-contractors has made a deduction from the gross invoice payment due to them.  This deduction has been excluded from the ‘gross amount of payment’ shown on a...

Debt recovery for J G Walker Groundworks Ltd

We acted for a local building company, J G Walker Groundworks Ltd, who were sub-contracted to carry out groundworks at a residential site.  Our client was not paid for the works they completed and therefore we referred the matter to adjudication. ...

False self employment

A recent judgment from the Employment Appeals Tribunal (EAT), together with the Government’s proposal to review false self employment, reminds employers of the risks of engaging people on a self employed basis. False self employment takes place...

Who is contracting with whom?

Knowing who you are contracting with should be simple.  However, on many occasions the identity of contracting parties is far from clear.  In recent months there have been a number of cases highlighting the importance of this issue.  Although...

Who is the contracting party?

Often, it can be difficult to identify contracting parties.  For example, when negotiating with a developer that is a holding company but uses special purpose vehicles for each individual development.  Alternatively, there may be different...

Employment law changes...good news?

Parliament has recently introduced a number of changes to employment law which will have a significant effect on employers and employees alike.  The question is whether this will be good news for employers, employees or everyone!     ...