Construction Case update – Autumn 2021

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Welcome to the Autumn 2021 Construction Case Update from Gateley Vinden

In the first article, chief executive Peter Vinden examines collateral warranties and the debate about when they constitute a “construction contract” for the purposes of the Housing, Grants, Construction & Regeneration Act 1996.

The act’s definition of a contract is wide-ranging but does not specifically mention collateral warranties, meaning whether a warranty is a construction contract under the act – and therefore the statutory right to adjudication – depends on the facts of the case.

Peter looks at a key case – Toppan Holdings Ltd and another v Simply Construct (UK) LLP – where the court provided guidance on whether an adjudication can be brought under a collateral warranty, with the answer very much dependent not only on the specific wording of the warranty but – crucially – when the warranty is executed.

He explores the background of the case and the details of the judgement and how best to navigate the uncertainty it has generated for the beneficiaries of collateral warranties, legal advisers and the wider construction industry.

Compulsive alternative dispute resolution

Next up, Hayley Sullivan, construction partner at Gateley Legal, discusses the Civil Justice Council’s long-awaited report on compulsive alternative dispute resolution (ADR), which was published in the summer.

She looks at the report’s recommendation that mandatory ADR should be encouraged and what this means for approaches to mediation. Ultimately, will compulsory ADR save time and costs, while providing opportunities to resolve disputes that are not available through the courts?

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