“Construction Law in 2021: a review of key legal and industry developments” by Mathias Cheung summarises some of the key legal and industry developments in construction law in 2021, both in the UK and abroad.
Published by Informa, copies are available to download from the i-law website.
Introduction
This article summarises some of the key legal and industry developments in construction law in 2021 (both in the UK and abroad).1 Over the course of 2021, as the UK emerged from the shadow of national lockdowns, the legal and construction industries experienced a gradual return to normality, and the courts continued to hand down numerous thought-provoking decisions. The last month of the year saw the surge of the Omicron coronavirus variant, which all but confirmed that Covid-19 was here to stay, and we would have to brace ourselves for challenges both old and new in the year ahead.
It is no secret that the Covid-19 pandemic was an ongoing cause of global disruption throughout the year 2021, as the world continued learning to co-exist with, and outsmart, the virus. Fortunately, the construction and legal industries as a whole were quick to transition to new ways of working, by harnessing the available technology where practicable, and carrying on in person with suitable social distancing measures where necessary.
In particular, the Business and Property Courts took proactive steps to ensure that dispute resolution could by and large continue in a “business as usual” manner. The Master of the Rolls, Sir Geoffrey Vos, recognised this in a speech in June 2021 to the London School of Economics:
“In England and Wales, the civil courts were relatively quick to adopt remote working for most types of case allowing proceedings to continue to be determined whilst lockdown and social distancing measures were in place. The Business and Property Courts, in particular, hardly missed a beat. They continued hearing interlocutory matters and final trials from a very early stage using Skype for Business and then Teams.” 2
Thanks to the English Courts’ ability to adapt and evolve quickly, the steady flow of civil cases continued throughout the year despite the many and varied obstacles. The courts also seized the momentum to improve the way in which disputes were resolved, from a renewed focus on the contents of witness statements, to the increasing use of online dispute resolution. This was only the beginning of much more radical reform, and it will be exciting to watch this important period in legal history unfold.
The Technology and Construction Court (TCC) played an important part in this wider movement – pressing on with a combination of remote, in-person and hybrid hearings – culminating in another prolific year of interesting and thought-provoking judgments on all aspects of construction law, ranging from adjudications to contractual interpretation. With a few much anticipated judgments from the Court of Appeal and the Supreme Court added into the mix, the result was another remarkable year of legal developments in an ever-changing landscape.
This latest annual overview of the key legal developments across different jurisdictions aims to provide some clarity on the important legal questions of the day, while bringing into perspective some of the everyday conundrums which are faced by the construction and infrastructure industries in the UK and around the world.
1 See also Cheung, M, Construction law in 2017: a review of key legal and industry developments; Cheung, M, Construction law in 2018: a review of key legal and industry developments; Cheung, M, Construction law in 2019: a review of key legal and industry developments; and Cheung, M, Construction law in 2020: a review of key legal and industry developments (Informa Law 2017–2021). 2 Sir Geoffrey Vos, “London International Disputes Week 2021: Keynote Speech” (delivered virtually on 10 May 2021).
Contents include
INTERIM AND FINAL PAYMENT MECHANISMS
- Disputes arising from a single construction contract
- Serial adjudications
- Exhaustion of jurisdiction
- Reservation of rights and waiver
- Enforcement in the context of insolvency
- Enforcement under contracts governed by foreign law
- Adjudicators’ fees
- Contract formation and interpretation
- Liquidated and ascertained damages
- Contractual notice requirements
- Principles of good faith
- Exclusion/limitation clauses
- Dispute resolution clauses
DEVELOPMENTS IN FIDIC CONTRACTS
- Witness statements under Practice Direction 57AC
- Expert evidence
- Amendment of pleading post-limitation
- Representative proceedings
See also (by Mathias Cheung):
Review of Construction Law 2020
Review of Construction Law 2019
