{"id":51816,"date":"2019-01-30T15:07:09","date_gmt":"2019-01-30T15:07:09","guid":{"rendered":"https:\/\/www.pbctoday.co.uk\/news\/?p=51816"},"modified":"2019-01-30T15:07:09","modified_gmt":"2019-01-30T15:07:09","slug":"2018-developments-construction","status":"publish","type":"post","link":"https:\/\/www.pbctoday.co.uk\/news\/planning-construction-news\/2018-developments-construction\/51816\/","title":{"rendered":"A year of developments in construction \u2013 and what 2019 may hold"},"content":{"rendered":"

2018 saw some big changes and big challenges for the construction industry. Simon Lewis and Hannah Gardiner of law firm Womble Bond Dickinson<\/a> look back at the key developments \u2013 and highlight what we can expect in the year ahead<\/h2>\n

Things never stand still in the construction industry and so, as expected, we saw a lot of change in 2018.<\/p>\n

Legal changes<\/h3>\n

GDPR\u00a0<\/strong><\/h4>\n

The major legislative changes arising from GDPR, which came into force on 25 May, saw businesses, including those in the construction industry, reviewing and changing the way they approached communications and data protection.<\/p>\n

The eye-watering maximum financial penalty for non-compliance with GDPR<\/a> is up to \u20ac20m or 4% of global turnover (whichever is higher), and so GDPR became increasingly high profile in the run up to May 2018.<\/p>\n

The deadline has now passed, but businesses should continue to regularly review whether they are still in compliance, particularly with information and guidance on GDPR still emerging. For more,\u00a0see here<\/a>.<\/p>\n

Adjudication\u00a0<\/strong><\/h4>\n

One case has changed the face of adjudication, following which we expect to see fewer \u201csmash and grab<\/a>\u201d adjudications. These kinds of adjudications are started when one party claims against another for payment of the full amount it says is owed (even though the true value of the amount payable may be lower) on the basis that the other party has failed to give a valid payment or pay less notice on time or correctly (ie in accordance with the contract between the parties).<\/p>\n

In that case, of S&T (UK) Limited v Grove Developments Limited [2018] EWCA Civ 2448, the Court of Appeal concluded that an employer who has failed to serve both a payment notice and a pay less notice can nevertheless commence an adjudication to have the true value of an application assessed and to reclaim any sum that has been overpaid \u2013 a significant departure from previous cases. Essentially, this has confirmed the availability to employers of true value adjudications even if they have failed to issue a timely payment or a valid pay less notice. For more, see here<\/a>.<\/p>\n

Concurrent delay\u00a0<\/strong><\/h4>\n

Another case, North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744, provoked much discussion as to whether the prevention principle (the principle that a party cannot enforce a contractual obligation on another party, where the party enforcing that obligation has itself prevented the other party from performing) should take precedence over freedom to agree contract terms in circumstances where parties had agreed on the allocation of the risk of concurrent delay.<\/p>\n

In this case, the Court of Appeal made it clear that parties are free to allocate concurrent delay risk in their contracts, regardless of the prevention principle, and it may be that we see more discussion around this in contract negotiations in the future. For more, see here<\/a>.<\/p>\n

If you are interested in construction disputes, you may also be interested in our helpful flowcharts and interactive processes on the following topics:<\/p>\n