Construction Disputes

Fletcher Day’s construction practice offers both commercial and contentious services under one roof. We regularly advise institutions, developers, investors, public authorities and contractors to enable them to deliver on their projects as efficiently and effectively as possible.

Our team is on hand to advise on all aspects of the construction process, from inception to completion, to resolve any issues as they arise. Our one-stop-service gives us the breadth of knowledge to be able to advise on a range of projects.

We offer our services and advice on a global scale and assist on multiple site projects through our international network.

We develop strong interpersonal relationships with you and your advisors so that we can achieve your objectives. Our team will help you deliver your projects on time and on budget.

Our contentious team can advise you on a wide range of building and engineering disputes including issues related to:

  • Latent and patent defects in quality of work and materials and remedial options
  • Project delays including
    • Requests for extensions of time and ‘relevant events’
    • Critical path analysis and concurrent delays
    • Claims for liquidated damages
  • Claims for loss and expense, prolongation and disruption
  • Claims for overhead and profit
  • Valuation of, and delays caused by variations
  • Final accounts and retentions
  • Delays or failure to make interim and final payments
  • Interpretation of contract terms, including JCT, NEC and RIBA standard forms
  • Contract novations and assignments
  • Exclusion and limitation Clauses
  • Terms implied under the Construction Act 1996 including payment and pay less notices
  • Suspension or cessation of works by the contractor
  • Nuisance claims including noise, vibration and damage to adjacent properties
  • Party wall issues
  • Selection, instruction and management of expert evidence in the fields of building and quantity surveying, structural engineering, architectural design, valuation and environmental remediation
  • Compliance with the Pre Action Protocol for Construction and Engineering Disputes.
  • Bonds, warranties and guarantees
  • Related insurance disputes including
    • Contractor’s all risks
    • Public and employer’s liability
    • NHBC type warranties
  • Professional negligence disputes involving architects, building and quantity surveyors, structural engineers and valuers

Case Studies

A selection of construction disputes upon which our construction team has advised:

  1. Succeeding at trial in the Technology and Construction Court in the case of Freeborn v De Almeida Marcal (t/a Dan Marcal Architects) [2019] EWHC 454 (TCC), which was a case of wide-spread significance to those who commission construction professionals. Issues included; the scope of the architect’s retainer; whether the brief was properly prepared, documented and agreed; the scope of a project manager’s responsibilities including obtaining competitive tenders, timely ordering of components and construction defects; the extent to which the architect had delegated his obligations to specialist contractors; and interpretation of the Building Regulations in relation to means of escape from fire.
  2. Advising a sub-contractor in their dispute with the main contractor in relation to tunnelling works in the Cross-Rail project in the approximate sum of £4 million. The issues include construction of a bespoke NEC3 Subcontract including the effect of pre-contractual representations, obligations in relation to the design of the permanent and temporary works, the effect of a step-down clause, the effect of an entire agreement clause and variations.
  3. Representing a high net worth couple in an adjudication in relation to their dispute with a design and build contractor over a £4 million refurbishment of their property in Notting Hill. The issues included the construction of a JCT Standard Building Contract without quantities 2011, the scope of an adjudicator’s jurisdiction including considering a substantial counterclaim, delays caused by the contractors, poor administration and management of the project, substantial defective and non-compliant works, loss and expense and variation, setting out errors and liquidated damages.
  4. Acting on behalf of a corporate purchaser, whose ultimate controlling shareholder appears in the Sunday Times Rich List, of two luxury detached properties located in the suburbs of Birmingham. The proceedings were issued in the Technology & Construction Court in the approximate sum of £1 million and involved serious structural defects throughout the properties, the developer’s failure to comply with its obligations under the Construction, Design and Management Regulations 2015 and defects in the planning permission. The issues included contractual interpretation, liabilities under the NHBC Buildmark Scheme, expert evidence in relation to effective remedial work to substantial waterproofing defects, defective planning consents, liabilities under the Defective Premises Act 1972, liabilities for loss of use and/or rental income and breaches of the Pre-Action Protocol for Construction & Engineering Disputes.
  5. Acting on behalf of a main contractor in relation to a dispute with a specialist sub-contractor in relation to the design, supply and installation of gas services to a new commercial development in the sum of approximately £1 million pounds. The issues included construction of the express and implied terms of the contract between the parties, delay, loss and expense, incorporation and effect of the sub-contractor’s standard terms, the Unfair Contract Terms Act 1977 and the extent to which overheads and profit are recoverable in breach of contract.
  6. Acting on behalf of senior manager of a national demolition and civil engineering contractor with a turnover of £400 million in regard to an NHBC building warranty dispute in relation to substantial structural defects to a new property in Gerrard’s Cross with remedial costs of approximately £500,000.
  7. Acting on behalf of a sub-contractor in its dispute with the main contractor in relation to infrastructure works carried out to a gyratory system in Rugby involving variations, extensions of time, the effect of a purported payless notice, defective works and the construction of the NEC3 form of contract.
  8. Acting on behalf of a high-net-worth couple in relation to a £1 million dispute with a main contractor in relation to substantive refurbishment works carried out to their Holland Park home. Issues included interpretation of the construction of the JCT Intermediate Building Contract with Contractors Design 2011, the scope of an adjudicator’s jurisdiction and power to deal with the Claimant’s counterclaim, obligations arising under the Consumer Rights Act 2015, substantial defects left outstanding by the main contractors, mismanagement of the project, the effect of Pay Less Notices and the validity of a completion certificate.
  9. Defending a national demolition and civil engineering contractor with a turnover of £400 million in regard to a £10 million nuisance claim arising out of a large demolition project in the City of London.

 

 

 

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