Part 1

Chapter 1.1 The planning system

1 INTRODUCTION
2 THE NEED FOR PLANNING PERMISSION
2.1 Introduction
2.2 The present system
2.3 Defining development
2.4 Planning permission
2.5 Permitted development
2.6 The Use Classes Order
2.7 Certificate of lawfulness
3 MAKING AN APPLICATION
3.1 Introduction
3.2 Preliminary matters
3.3 Outline or full application?
3.4 Complying with the technicalities
3.5 Consultation
4 HOW PLANNING APPLICATIONS ARE DETERMINED
4.1 The central principle
4.2 Government Advice
4.3 Development Plans
4.4 The local planning authority and the committee system
4.5 The application process and time-scale
4.6 Planning permission conditions and obligations
4.7 Planning appeals
5 ENVIRONMENTAL ASSESSMENT
5.1 Introduction
5.2 The requirements
5.3 Assessment procedure
5.4 Other types of scheme
6 THE HISTORIC ENVIRONMENT
6.1 Introduction
6.2 Archaeology and ancient monuments
6.3 Listed buildings
6.4 Conservation areas
7 CARRYING OUT DEVELOPMENT
7.1 Timescale
7.2 Variation of conditions
7.3 Grampian conditions
7.4 Construction of new roads
7.5 Works within existing public highways
7.6 The procedure
7.7 When is development begun?
7.8 Breach of planning control
7.9 The enforcement process
Chapter 1.2 Financing the project
1 TYPES OF PROJECT FINANCE
1.1 Introduction
1.2 BOT and PFI schemes
1.3 Property development
2 RANGE OF FINANCING OPTIONS
2.1 Equity and mezzanine funding
2.2 Institutional funding
2.3 Bank finance
2.4 Bond finance
3 THE FUNDERS REQUIREMENTS
3.1 Introduction
3.2 The project company
3.3 Security, step-in rights, direct agreements and collateral warranties
3.4 The funders technical adviser
3.5 Construction contract issues
4 INSTITUTIONAL FUNDING STRUCTURES
5 BANK FINANCING
5.1 Term, interest rate, prepayment and drawdown
5.2 Financial covenants and accounts
5.3 Project undertakings
6 BOND FINANCING
6.1 Types of project bond issue
6.2 Offering circular and listing
6.3 Role of the guarantor, arranger and bond trustee
6.4 Verification
6.5 Rating
6.6 Timing
Chapter 1.3 Public sector projects
1 INTRODUCTION
2 WHY SHOULD PUBLIC SECTOR PROJECTS BE DIFFERENT?
3 WHAT CONSTITUTES THE PUBLIC SECTOR?
3.1 Central government
3.2 Local government
3.3 Utilities
3.4 Other bodies
4 SUBSTANTIVE PROCUREMENT RULES
4.1 Introduction
4.2 The main legal sources
4.3 The role of the EC
4.4 EC directives
4.5 Scope: works, supplies or services and value thresholds
4.6 Special rules: concessions, subsidized contracts, design contests
4.7 Types of procedure
4.8 Notices and time limits
4.9 Prequalification and selection
4.10 Enforcement
5 SOME PROBLEM AREAS IN THE APPLICATION OF PROCUREMENT
LAW
5.1 Introduction
5.2 Typical breaches of the rules
5.3 Negotiations
5.4 Construction management
5.5 Speculative work and the Lottery
5.6 Reopening a deal
Chapter 1.4 Publicprivate sector partnerships
1 INTRODUCTION
1.1 Basic structure of the Private Finance Initiative
1.2 Allocation of risk
1.3 Standardization of contracts
1.4 Types of PFI project
1.5 Facilitating projects
1.6 Stages of PFI project
1.7 Aim of this chapter
2 RISK TRANSFER
2.1 Risk transfer in PFI transactions
2.2 Design risk
2.3 Planning risk
2.4 Service commencement
2.5 Cost risks
2.6 Quality risks
2.7 Change of law
2.8 Project obsolescence
2.9 Affordability
2.10 Value for money
3 CONTRACTUAL MATRIX
3.1 Project agreement
3.2 Building subcontract
3.3 Security documentation
3.4 Professional consultants and specialist contractors
3.5 Ancillary construction contracts
4 DESIGN AND THE TECHNICAL DOCUMENTATION
4.1 Approach to design
4.2 Role of an output specification
4.3 Nature of outputs
4.4 Typical content of an output specification
4.5 Development of the output specification and service providers proposals
5 DESIGN DEVELOPMENT
5.1 Design development procedures
5.2 Awarding authoritys sign-off
5.3 Iterative process
5.4 Design development and variations
6 COMPLIANCE MONITORING
6.1 Need for compliance monitoring
6.2 Scope of compliance monitoring
6.3 Quality management systems
6.4 Remedies for defects
7 SERVICE COMMENCEMENT
7.1 Significance
7.2 Certification of service commencement
7.3 Who certifies?
7.4 Independent certifier
7.5 Risk transfer
7.6 Outstanding work
7.7 Post-occupation commissioning
8 CONSTRUCTION (DESIGN AND MANAGEMENT) REGULATIONS 1994
8.1 Client duties
8.2 Health and safety plan
8.3 Health and safety file
9 DIRECT AGREEMENTS AND COLLATERAL WARRANTIES
9.1 Direct agreements
9.2 Collateral warranties
10 APPLICATION OF THE HOUSING GRANTS, CONSTRUCTION AND
REGENERATION ACT 1996, PART II TO PFI TRANSACTIONS
10.1 Application to the project agreement
10.2 Application to the building subcontract
10.3 Payment provisions
10.4 Suspension
11 DISPUTE RESOLUTION
11.1 Procedures
11.2 Joinder
Chapter 1.5 Tender process
1 INTRODUCTION
1.1 The reasons for tendering in construction
1.2 The relationship between tendering and negotiation
1.3 The significance of parity of tendering
1.4 The range of tendering elements
1.5 Tendering and partnering
1.6 The law and tenders in England
1.7 Tendering cost
1.8 Recovery of tendering cost
2 TENDERING CONSTRUCTION CONTRACTS
2.1 The process
3 TENDERING CONSULTANT CONTRACT
3.1 Similarities/differences with construction tenders
3.2 Price versus value
3.3 Deliverability
3.4 Good practice
4 TENDERING GUIDELINES
4.1 Introduction
5 PUBLIC SECTOR TENDERING
6 SUBCONTRACT TENDERING
6.1 Traditional tendering
6.2 Problems for the main contractors
6.3 Problems for the subcontractors
7 THE RISKS IN TENDERING
7.1 Ascertaining costs
7.2 Construction risk
7.3 Overheads and profit recovery
7.4 Inflation and market conditions
7.5 Tendering costs
7.6 The effect of change
8 PFI/PPP/DBFO CONTRACTS
8.1 Generic format
8.2 Tendering process
8.3 Evaluation of tenders
8.4 The role of advisers
9 TURNING TENDERS INTO CONTRACTS
9.1 Introduction
9.2 Letters of intent
9.3 Acceptance
9.4 Effect of the phrase subject to contract or subject to board approval
9.5 Acceptance by conduct
9.6 The execution of documents
10 TENDER ABUSES
10.1 Bribery and secret commissions
10.2 Collusive tendering
Chapter 1.6 The construction contract
1 INTRODUCTION
1.1 The use and importance of contracts in construction
1.2 The variety of construction contracts
2 THE PRINCIPAL TYPES OF CONSTRUCTION CONTRACT
2.1 Traditional contracts
2.2 Contracts with contractors design
2.3 Contracts providing for a specialist management function
2.4 Term contracts
2.5 Concession (BOT) contracts
3 DOCUMENTS FORMING PART OF THE CONSTRUCTION CONTRACT
3.1 Drawings and specifications
3.2 Bills of quantities, schedules of rates, etc.
3.3 Programmes and method statements
4 PART II OF THE HOUSING GRANTS, CONSTRUCTION AND
REGENERATION ACT 1996
4.1 Application of the HGCRA 1996
4.2 The provisions of the Act
5 THE APPLICABLE LAW OF THE CONTRACT
6 SELECTION OF CONDITIONS OF CONTRACT IN PRACTICE
6.1 Procurement and contracts
6.2 Standard form conditions of contract and bespoke contracts
6.3 A survey of available standard form contracts
6.4 Selection of an appropriate contract: general considerations
6.5 Practical considerations
6.6 Interrelationships between factors for the selection of contracts
6.7 Amendments and shifting the risk balance
REFERENCES
Chapter 1.7 Construction insurance
1 GENERAL INSURANCE
1.1 Insurance and risk management
1.2 Insurance definition
1.3 Insurable interest
1.4 Utmost good faith
1.5 Non-disclosure
1.6 Misrepresentation
1.7 Indemnity
1.8 Proximate cause
1.9 Subrogation rights
1.10 Insurer solvency
2 TYPES OF INSURANCE
2.1 Liability policies
2.2 Non-negligent damage JCT Clause 21.2.1 (previously known as Clause 19.(2)a)
2.3 Material damage policies
2.4 Composite and combined policies
2.5 Difference in conditions method (DIC)
2.6 Project insurance
2.7 Floater policies
2.8 Consequential loss policies insurance for liquidated damages
2.9 Terrorism insurance
2.10 Insurance premium tax (IPT)
2.11 Millennium computer problems
2.12 Conclusion
2.13 Loss prevention
3 CONSTRUCTION INSURANCE PROVISIONS UNDER TRADITIONAL
BUILDING CONTRACTS AND CIVIL ENGINEERING CONTRACTS
3.1 Traditional building contracts
3.2 Civil engineering contracts
4 PROFESSIONAL INDEMNITY INSURANCE (PI)
4.1 The policy
4.2 The cover
4.3 Policy conditions
4.4 Exceptions
4.5 Choice of insurer
5 LATENT DEFECTS INSURANCE
5.1 Type of policy
5.2 The market
5.3 Contents of the policy
5.4 Hidden dangers
5.5 The future
Part 2:
Chapter 2.1 Ways of operating
1 SOLE PRACTICES
1.1 Nature
1.2 Taxation
1.3 Opening years
1.4 Closing years
1.5 Payment of income tax
1.6 Trading loss relief
1.7 National Insurance Contributions
1.8 Summary of sole practice
2 PARTNERSHIP
2.1 Nature
2.2 General partnerships
2.3 Limited partnerships
2.4 Limited liability partnerships (LLPs)
2.5 Taxation
2.6 Name of practice
2.7 Service companies
2.8 The reform of partnership law
2.9 Summary of partnerships
3 COMPANIES
3.1 Private company limited by shares
3.2 Procedure for incorporation
3.3 Structure, management and administration
3.4 Public limited company
3.5 Procedure for incorporation
3.6 Structure, management and administration
4 EEIGs
4.1 Nature
4.2 Advantages
4.3 Disadvantages
4.4 Procedure for setting up an EEIG
4.5 Constitutional documents
4.6 Structure, management and administration
5 Summary
Chapter 2.2 Working with others
1 INTRODUCTION
2 REASONS FOR ESTABLISHING A JOINT VENTURE
2.1 Limitation of risk
2.2 Pooling of resources
2.3 Exploitation of opportunities
2.4 The whole operation is more harmonized
3 PRINCIPAL CONSIDERATIONS IN ESTABLISHING A JOINT VENTURE
TO TENDER
3.1 Choice of partner
3.2 Suitability of a joint venture for small and medium-sized companies
3.3 Status of the client
3.4 Split of work and costs
3.5 Main provisions
3.6 Relationship with client
4 TYPES OF LEGAL STRUCTURE
4.1 Consortium agreement
4.2 Limited liability company
4.3 Partnership
4.4 Limited partnerships
5 COMPETITION ASPECTS
6 CONCLUSIONS
Chapter 2.3 Working internationally
1 INTRODUCTION
2 STRATEGIC CONSIDERATIONS
2.1 Reasons for working internationally
2.2 Fieldwork
2.3 Understanding the culture
2.4 Identifying leader and staff
3 PRACTICAL ISSUES LOGISTICS
3.1 International project management
3.2 Internal working and subconsultancy
3.3 Business systems and the centre of management
3.4 Banks
3.5 IT
3.6 Accommodation and location
3.7 Infrastructures
3.8 English as a global language
3.9 Cost and income
3.10 Local advice
4 REGULATORY FRAMEWORKS
4.1 Insurances
4.2 Rights and responsibilities for design
4.3 Corporate reporting
4.4 Technical registrations
4.5 Contracts for services, fee scales, stages and deliverables
4.6 Guarantees, bonds, powers of attorney
4.7 Notarization
4.8 Professional bodies
4.9 Understanding bureaucracy
4.10 Exchange rate risk
5 SOME TAX ISSUES
5.1 Introduction
5.2 What taxes are payable in the non-UK territory?
5.3 Is there a double taxation treaty between the UK and the overseas country?
5.4 Is there a taxable presence overseas?
5.5 Tax presence internationally
5.6 Mitigating the non-UK tax burden
5.7 Repatriation of funds: withholding tax
5.8 Employee issues
5.9 Regulatory matters
6 TAX CHECK-LIST
Chapter 2.4 The engineers appointment
1 FORM OF APPOINTMENT
1.1 Exchange of letters
1.2 Incorporating standard terms
1.3 Bespoke forms
1.4 Standard forms
1.5 Signing under hand or as a deed
2 KEY ISSUES WHICH ARISE IN APPOINTMENT DOCUMENTS
2.1 Duty of care
2.2 Warranties for fitness for purpose
2.3 Absolute or strict obligations
2.4 Time-scale for professional services
2.5 Certificates and statements
2.6 Terms for the benefit of third parties and the Contracts (Rights of Third
Parties) Act 1999
2.7 Deleterious materials
2.8 Commencement, termination and suspension of appointment
2.9 Key personnel
2.10 Client obligations
2.11 Indemnities
2.12 Limitation and exclusion of liability
2.13 The obligation to maintain professional indemnity insurance
2.14 The Construction (Design and Management) Regulations 1994 (CDM)
2.15 Subconsultancies
2.16 Remuneration
2.17 The services
2.18 Bonds, parent company guarantees, liquidated damages, set off and retention
2.19 Dispute resolution
2.20 Copyright
3 WORKING FOR DESIGN/BUILD CONTRACTOR
3.1 Assignment and novation
4 STANDARD FORMS
4.1 The ACE Conditions
4.2 The Professional Services Contract
Chapter 2.5 Collateral warranties
1 WHAT IS A COLLATERAL WARRANTY?
2 SO WHY ARE COLLATERAL WARRANTIES NEEDED?
3 WARRANTORS AND BENEFICIARIES
4 ISSUES FOR THE CLIENT
5 THE OBLIGATION TO PROVIDE COLLATERAL WARRANTIES
6 TERMS OF THE COLLATERAL WARRANTY
7 STEP-IN PROVISIONS AND COLLATERAL WARRANTIES
8 CONTRACTORS WARRANTIES
9 COMMON ABUSES
10 THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 THE END
OF COLLATERAL WARRANTIES?
Chapter 2.6 Professional indemnity insurance
1 INTRODUCTION
2 PROFESSIONAL INDEMNITY INSURANCE
2.1 The policy form
2.2 Requirements of professional bodies
2.3 Common features
2.4 The recital clause
2.5 The operative clause
2.6 Legal liability
2.7 Negligence only wording
2.8 Claims made policy
2.9 Limit of indemnity
2.10 Exceptions
2.11 Conditions
3 CLAIMS
3.1 Notification of claim
3.2 Late notification
3.4 Circumstances likely or event
3.5 Blanket notifications
3.6 The QC clause
3.7 Fraudulent claims
3.8 Innocent non-disclosure
3.9 Discharge of liability
3.10 Prejudiced claims
3.11 Differences
4 EXTENSIONS
4.1 Libel and slander
4.2 Joint ventures
4.3 Loss of or damage to documents
4.4 Infringement of copyright
4.5 Health and safety at work (prosecution defence costs)
5 PROJECT INSURANCE
6 DISCLOSURE REQUIREMENTS
Chapter 2.7 Employment law
1 CONTRACT OF EMPLOYMENT OR CONTRACT FOR SERVICES?
1.1 Who is an employee?
1.2 Distinguishing between an employee and a self-employed person
1.3 The legal consequences of the distinction
1.4 Summary of differences
1.5 Construction Industry Scheme
2 DEFINING A CONTRACT OF EMPLOYMENT
2.1 Employees implied obligations
2.2 Employers implied obligations
2.3 Obligations on the employer and the employee
2.4 Written particulars of employment
2.5 Types of employment contract
2.6 International agreements
3 SUBSISTENCE AND TRAVEL ALLOWANCES IN THE UK
3.1 The basis of tax relief for employee travel and subsistence
4 TUPE TRANSFERS
4.1 What is a relevant transfer?
4.2 What are the consequences of TUPE applying?
4.3 Who transfers?
4.4 How does TUPE apply to rights under pension schemes?
4.5 Varying terms and conditions
4.6 How are reorganizations and dismissals affected?
4.7 What consultations have to take place?
4.8 Commercial context
4.9 Right to object
5 WRONGFUL AND UNFAIR DISMISSAL
5.1 Wrongful dismissal
5.2 Unfair dismissal
5.3 Automatically unfair dismissals
5.4 Reasonableness
5.5 Remedies
5.6 Discrimination
5.7 Collective consultation
6 WORKING TIME REGULATIONS
6.1 Coverage
6.2 Meaning of working time and record keeping
6.3 Weekly working hours limits
6.4 Measures relating to night time working
6.5 Rest periods and breaks
6.6 Paid annual leave
6.7 Derogations
6.8 Enforcement
7 COLLECTIVE CONSULTATION
7.1 When is consultation required?
7.2 Trade union recognition
7.3 Deciding the bargaining unit
7.4 Sufficient support
7.5 The Ballot
7.6 The consequences of recognition
7.7 Derecognition
7.8 Existing voluntary trade union recognition
8 LEGISLATION UPDATE: RECENT AND FORTHCOMING LEGISLATION
8.1 UK legislation
8.2 European legislation
Chapter 2.8 Information technology in the
construction industry
1 SCOPE OF CHAPTER
2 STRUCTURE OF CHAPTER
3 TECHNOLOGY AS PRODUCT
3.1 Introduction
3.2 The supply and procurement of technology
3.3 Software licensing
3.4 Intellectual property
3.5 Systems integration
4 TECHNOLOGY AS ENABLER
4.1 Introduction
4.2 Outsourcing
4.3 Application service providers
4.4 General legal issues and computers
4.5 Data protection
4.6 Registration
4.7 Compliance with the eight data protection principles (DPPs)
5 TECHNOLOGY AS TRANSFORMER
5.1 E-commerce in the construction industry
5.2 E-commerce and the law
5.3 EDI in the construction industry
5.4 Legal issues
Part 3

Chapter 3.1 The law of contract

1 WHY BOTHER?
2 MAKING A CONTRACT
2.1 Unilateral or bilateral contracts
2.2 Letters of intent
3 OFFER AND ACCEPTANCE
3.1 Invitations to treat
3.2 Offer
3.3 Acceptance
4 CONSIDERATION
4.1 Problems with consideration
5 CONSTRUCTION OF A CONTRACT
5.1 Expressed intention
5.2 Rules of construction
6 TERMINATING OR DETERMINING A CONTRACT
6.1 Discharge by agreement
6.2 Discharge by frustration
6.3 Discharge by breach
7 REMEDIES FOR BREACH OF CONTRACT
7.1 Calculating loss
7.2 Equitable remedies
Chapter 3.2 Construction health and safety
1 INTRODUCTION
2 THE REGULATORY AGENCIES
2.1 Health and Safety Commission
2.2 The Health and Safety Executive
2.3 Construction Industry Advisory Committee
2.4 Health and safety legislation in Scotland and Northern Ireland
2.5 Approved Codes of Practice and guidance
2.6 British and CEN standards
3 ENFORCEMENT
3.1 Jurisdiction over work
3.2 Enforcement powers
3.3 Enforcement notices
3.4 Prosecutions
3.5 Personal liability
3.6 Manslaughter
4 THE HEALTH AND SAFETY AT WORK ETC. ACT 1974
4.1 Section 2: general duties of employers to their employees
4.2 Section 3: general duties of employers and self-employed to persons other than
their employees
4.3 Section 4: general duties of person concerned with premises to persons other
than their employees
4.4 Overview of the obligations on parties to a construction project
5 MANAGEMENT DUTIES
5.1 Written health and safety policies
5.2 The Management of Health and Safety at Work Regulations 1999
5.3 Employee consultation
5.4 The Working Time Directive
5.5 Notification of construction work
5.6 Accident reporting and incident requirements
5.7 First-aid arrangements
5.8 Employers liability insurance
6 MANAGEMENT OBLIGATIONS CONSTRUCTION AND ENGINEERING
PROJECTS
6.1 Construction (Design and Management) Regulations (CDM) 1994
6.2 CDM documentation
7 CONSTRUCTION-ORIENTATED LEGISLATION
7.1 Construction (Health, Safety and Welfare) Regulations 1996
7.2 Confined Spaces Regulations 1997
7.3 Work in Compressed Air Regulations 1996
7.4 Diving at Work Regulations 1997
8 HAZARD-SPECIFIC REGULATIONS: USE OF EQUIPMENT
8.1 Provision and Use of Work Equipment Regulations 1998 (PUWER)
8.2 Lifting Operations and Lifting Equipment Regulations 1998 (LOLER)
8.3 Electricity at Work Regulations 1989
8.4 Personal Protective Equipment at Work Regulations 1992
8.5 Construction (Head Protection) Regulations 1989
8.6 Noise at Work Regulations 1989
8.7 Safety of Pressure Systems Gas Cylinders
8.8 Manual Handling Operations Regulations 1992
8.9 The Control of Substances Hazardous to Health Regulations 1999
8.10 Control of Lead at Work Regulations 1998
8.11 Control of Asbestos at Work Regulations 1987
8.12 Ionising Radiations Regulations 1999
8.13 Explosives
9 SUPPLY OF WORK EQUIPMENT AND MATERIALS
9.1 Section 6 of HSWA Other UK Legislation Relating to Machinery
 9.2 Construction Products Regulations 1991
9.3 Electromagnetic compatibility
9.4 Lifts Directive
9.5 Supply of Machinery (Safety) Regulations 1992
9.6 Low Voltage Directive
10 GENERAL WORKPLACE SAFETY REQUIREMENTS
10.1 Workplace (Health, Safety and Welfare) Regulations 1992
10.2 Health and Safety (Display Screen Equipment) Regulations 1999
10.3 Fire safety
10.4 Civil liability: the relationship of health and safety law with civil claims for
damages
10.5 Protection against civil liability
Chapter 3.3 Insolvency in construction
1 INFORMAL INSOLVENCY
2 FORMAL INSOLVENCY
2.1 Liquidation
2.2 Receivership
2.3 Administration
2.4 Bankruptcy and individual voluntary arrangements
2.5 Company voluntary arrangement
3 INSOLVENCY SET-OFF
3.1 Liquidation and bankruptcy
3.2 Administration
3.3 Administrative receivership
4 INSOLVENCY CLAIMS
4.1 Fraudulent trading
4.2 Wrongful trading
4.3 Preference
4.4 Transactions at an undervalue
4.5 Transactions in fraud of creditors
4.6 Misfeasance
4.7 Post-petition disposition
4.8 Invalid floating charge
4.9 Unregistered registrable charges
4.10 Extortionate credit transaction
4.11 Contravention of the pari passu rule
5 TERMINATION OF CONTRACTS
5.1 Termination under the contract
5.2 Termination at common law
5.3 Novation
6 CASE STUDY
6.1 Base data
6.2 Presentation of findings
6.3 Insolvency practitioners options for contracts
7 SECURITY FOR PERFORMANCE
7.1 Title to materials
7.2 Plant and equipment
7.3 Retention
7.4 Insolvency and bonds
8 SECURITY FOR PAYMENT
8.1 Retention trusts
8.2 Constituting the trust
8.3 Rights of recourse
REFERENCES
Chapter 3.4 Law of tort
1 NEGLIGENCE
1.1 Duty of care
1.2 Breach of duty
1.3 Duties in the construction industry
1.4 Damages and the measure of loss
2 NUISANCE
2.1 Introduction
2.2 Public nuisance and statutory nuisance
2.3 Private nuisance: who can sue?
2.4 Public nuisance who can sue?
2.5 Who can be sued?
2.6 Establishing liability and damages
2.7 Planning permission
2.8 Building and demolition
2.9 Building and the right to light
2.10 Defences
2.11 Statutory authority
3 Rylands v. Fletcher
3.1 Introduction
3.2 The rule in Rylands v. Fletcher
3.3 Who can sue and who can be sued?
3.4 Special rules for water, gas, electricity, fire, explosives, poisonous waste and oil
pollution, aircraft and nuclear installations
4 BREACH OF STATUTORY DUTY
4.1 Introduction
4.2 Is the breach actionable?
4.3 The two exceptions
4.4 Construction and breach of statutory duty
5 OCCUPIERS LIABILITY
5.1 Introduction
5.2 The Occupiers Liability Act 1957
5.3 The occupier
5.4 Visitors
5.5 Duty of care
5.6 Entering the premises to carry out works
5.7 Duty to warn
5.8 Defences
5.9 Liability of occupier for independent contractors
6 DEFECTIVE PREMISES ACT 1972
7 TRESPASS
7.1 Intention
7.2 Possession
7.3 Interference
7.4 Defences
7.5 Remedies
Chapter 3.5 Environmental issues
1 INTRODUCTION
2 Sources of environmental law and those who enforce it
2.1 Sources of law
2.2 Environmental regulators
3. Waste management
3.1 Waste management and recycling
3.2 Duty of care as respects waste
3.3 Penalties following a breach of waste management law
4. Water pollution
4.1 Summary
4.2 Causing or knowingly permitting a discharge
4.3 Anti-pollution works notices
4.4 Enforcement notices
4.5 Abstraction of water
4.6 Agency clean-up
4.7 Disposal to public sewers
5. Contaminated Land
5.1 Summary
5.2 What is contaminated land?
5.3 Who is responsible for remediation?
5.4 Remediation notices
5.5 Other remedies which may be applicable to contaminated land
5.6 Contaminated land and waste management licensing
6. Air pollution
6.1 Clean Air Act 1993
6.2 Environmental Protection Act 1990
6.3 Statutory Nuisances
7. Noise
7.1 Control of Pollution Act 1974, sections 60 and 61
8. Asbestos
9. Nature conservation
10. Environmental impact assessment
11. Environmental management systems
12. Public Access to Information
Part4

Chapter 4.1 Administration of claims

1 ESSENTIALS OF CLAIMS
1.1 Dispute avoidance
1.2 Contract claim procedures
1.3 Legal basis of claims
1.4 Claims under the contract
1.5 Claims for breach of contract
2 CLAIMS FOR EXTENSION OF TIME
2.1 Purpose of extension of time clauses
2.2 Parties obligations as to time
2.3 Substantial completion
2.4 Programme of works
2.5 Notice
2.6 Time at large
2.7 Power of A/E to grant extensions of time
2.8 Omitted work
2.9 Mitigation of delay
2.10 Particulars
2.11 Cause and effect
2.12 Concurrent delays
2.13 Method of analysis
3 DEDUCTION OF LIQUIDATED DAMAGES
3.1 Purpose
3.2 Enforceability of LD clauses
3.3 Liquidated damages expressed as a percentage
3.4 Onus of proof
3.5 Notice
4 CLAIMS FOR SITE CONDITIONS
4.1 Changed ground conditions
4.2 The nature of the risk
4.3 Incomplete information disclosure
4.4 Contractual risk model
4.5 ICE foreseeability test
4.6 FIDIC forms
4.7 ECC probability test
4.8 Effect of selected method of working
4.9 Pricing mechanism
4.10 Reaction to risk events
5 FINANCIAL CLAIMS
5.1 Payment
5.2 Certificates
5.3 Variations
5.4 Measurement and valuation
6 DELAY AND DISRUPTION FINANCIAL CLAIMS
6.1 Head office overheads
6.2 Finance charges
6.3 Constructive acceleration claim
6.4 Evaluation of disruption
7 MANAGEMENT OF CLAIMS
7.1 Strategy plan
7.2 Management of evidence
7.3 Management of delay and disruption analysis
7.4 Settlement
7.5 Relevance of third party settlement
8 PARTICULAR ADMINISTRATIVE CLAIM ISSUES
8.1 Access to the site
8.2 Possession of the site
8.3 Acceleration
8.4 Approvals and satisfaction
Chapter 4.2 Litigation
1 INTRODUCTION
2 THE OVERRIDING OBJECTIVE
3 PRE-ACTION
3.1 Analysis of case and formulation of case theory
3.2 Pre-action offers to settle
3.3 Conduct of the parties to the dispute
3.4 Pre-action protocol
4 COMMENCING PROCEEDINGS
5 ISSUING A CLAIM
5.1 The track
6 DIRECTIONS/CASE MANAGEMENT CONFERENCE
7 IS SUMMARY JUDGMENT APPROPRIATE?
8 DISCLOSURE (FORMERLY CALLED DISCOVERY) RULE 31
9 SPECIFIC DISCLOSURE AND INSPECTION
10 IS IT APPROPRIATE TO MAKE AN OFFER?
11 EVIDENCE
11.1 Witness evidence
11.2 Expert evidence
11.3 Written submissions
12 HEARINGS INTERIM APPLICATIONS
12.1 General considerations
12.2 Time/compliance applications
12.3 Applying to amend statement of case
12.4 Security for costs
12.5 Interim relief
12.6 Interim payments
13 PRE-TRIAL REVIEW
14 TRIALS
15 JUDGMENTS
16 TIME FOR COMPLYING WITH THE JUDGMENT OR ORDER
17 ENFORCEMENT AND COSTS
17.1 Writs of fieri facias/garnishee proceedings
17.2 Charging orders
17.3 Appointment of a receiver
17.4 Sequestration
17.5 Order of committal
Chapter 4.3 Arbitration
1 INTRODUCTION
1.1 The Arbitration Act 1996
1.2 Arbitration procedure and rules
1.3 Advantages and disadvantages of arbitration
1.4 Domestic and international arbitration
2 COMMENCING AN ARBITRATION
2.1 The dispute
2.2 Pre-arbitral procedures
2.3 Methods of commencing arbitration
2.4 Date of commencement of arbitration and the Limitation Acts
2.5 Method of appointment of arbitrator
2.6 Conflicts of interest and terms and conditions
2.7 Procedure after appointment
2.8 Representation in arbitration
3 THE ARBITRATION PROCESS
3.1 General principles
3.2 Defining the issues
3.3 Disclosure
4 PREPARATION OF FACTUAL EVIDENCE
4.1 Documents
4.2 Witnesses
4.3 Technical issues
4.4 Preparation for the hearing
5 PRESENTATION OF THE CASE TO THE ARBITRATOR
5.1 Documents only or oral hearing
5.2 Oral hearings the procedure
5.3 The involvement of the arbitrator
6 THE ARBITRATORS AWARD
6.1 Effect of the award
6.2 Contents of the award
6.3 Awards of interest
6.4 Awards of costs
6.5 Enforcement of the award
6.6 Challenges to the award
7 PARTICULAR POWERS OF ARBITRATORS
7.1 Jurisdiction (section 30 of the 1996 Act)
7.2 Security for costs (section 38(3) of the 1996 Act)
7.3 Directions as to property (section 38(4) of the 1996 Act)
7.4 Provisional relief (section 39 of the 1996 Act)
7.5 Party default (section 41 of the 1996 Act)
8 PARTICULAR PROBLEMS
8.1 Relationship with the courts
8.2 Court proceedings commenced by a party to an arbitration clause
9 THE INTERNATIONAL DIMENSION
9.1 Seat of arbitration
9.2 The proper law
9.3 International arbitration rules
CHAPTER 4.4 Adjudication
1 WHAT IS ADJUDICATION?
2 DOES THE HUMAN RIGHTS ACT APPLY TO ADJUDICATION?
3 WHAT DISPUTES MAY BE THE SUBJECT OF ADJUDICATION?
3.1 Construction contracts
3.2 Contracts in writing
3.3 A dispute
3.4 Under the contract.
4 Disputes usually adjudicated
4.1 Payment notices
4.2 Withholding notices
4.3 The statutory right to suspend performance for non-payment
4.4 Other matters which may be adjudicated
5 WHAT PROVISIONS MUST A CONSTRUCTION CONTRACT CONTAIN
TO COMPLY WITH THE 1996 ACT?
6 WHO MAY BE AN ADJUDICATOR?
7 THE SCHEME
8 JURISDICTION
8.1 Where there is no contract
8.2 Where the contract is not a construction contract within the meaning of section
104 of the Act
8.3 Where a decision on the matter in dispute has already been made
8.4 Where the adjudicator fails to deal with or confine himself or herself to the
matters referred
8.5 Does an adjudicator have power to determine his or her own jurisdiction?
9 APPOINTMENT OF THE ADJUDICATOR
10 FEES AND COSTS
11 THE ADJUDICATORS POWERS
12 DUTIES OF THE ADJUDICATOR
13 DUTIES OF THE PARTIES
14 ADJUDICATION UNDER CONTRACT
15 SPECIFIC PROVISIONS IN THE ICE (AND OTHER STANDARD FORM)
CONTRACTS
16 WHAT IS THE POSITION IF ONLY THE REFERRING PARTY TAKES
PART IN THE ADJUDICATION?
17 THE FORM AND CONTENT OF AN ADJUDICATORS DECISION
18 TO WHAT EXTENT IS THE DECISION BINDING ON THE PARTIES?
19 ENFORCEMENT OF THE ADJUDICATORS DECISION
20 POTENTIAL LIABILITY OF THE ADJUDICATOR
Chapter 4.5 Alternative dispute resolution
1 INTRODUCTION
2 NEGOTIATED SETTLEMENTS
3 MEDIATION
3.1 Principal forms of mediation
3.2 The facilitative approach
3.3 The evaluative approach
3.4 The mediation process
3.5 The final agreement
4 CONCILIATION
4.1 The ICEs Conciliation Procedure (1999)
4.2 The ICC Rules of Conciliation
5 MINI-TRIAL
6 DISPUTE RESOLUTION PANELS
6.1 The Dispute Adjudication Board under The Fdration Internationale des
Ingnieurs-Conseils (FIDIC) Conditions of Contract 4th Edition
6.2 The Dispute Adjudication Board under FIDIC Conditions of Contract for
Construction 1st Edition 1999
7 EARLY NEUTRAL EVALUATION
8 EXPERT DETERMINATION
9 MEDIATIONARBITRATION
10 STAGED DISPUTE RESOLUTION PROVISIONS
10.1 Staged procedures in the ICE 7th Edition
10.2 Ad hoc staged dispute resolution provisions
11 AMICABLE SETTLEMENT
12 THE LEGAL EFFECT OF ADR CLAUSES TO WHAT EXTENT ARE THEY
ENFORCEABLE?
13 ADVANTAGES AND DISADVANTAGES OF ADR
14 SELECTING A MECHANISM FOR CONSTRUCTION DISPUTES
15 LIMITATION PERIODS