The case of Leeds City Council v Waco UK Ltd provides a lesson for those engaged in exploiting loopholes, warns Sarah E Phillips. Above: Sarah E Phillips is a solicitor with Thomas Eggar LLP The Technology & Construction Courts appear to be seeing an increasing number of enforcement actions in relation to what has become known as the ‘smash and grab’. No, these are not matters that you might expect to find in the criminal courts; rather this somewhat unattractive term has been coined to describe perfectly legitimate adjudications started when a payment that is due under a construction contract has not been paid by the final date for payment and no valid payless notice has been issued. The term has arisen because, provided that i) the claimant can demonstrate that the payment was properly applied for, ii) the final date for payment has passed and iii) there is no payless notice, the adjudicator will generally find for the claimant without inquiring into the amount being sought. The strict application of the payment terms of the Housing Grants & Regeneration Act 1996 (as amended) (the ‘Act’) does not require the amount applied for to be validated in any way.  The application just has to state the sum due and how it has been calculated. If no payment notice or payless notice is served by the payer, the amount stated in the application must be paid regardless of how excessive or otherwise it may be. Just as adjudicators will generally award such payments, the court will generally enforce the award, provided the adjudication process is sound. While this is a perfectly valid way of getting paid, it has become what many consider to be the exploitation of a technicality – applying the letter of the law with little thought for the spirit that had intended to support the cashflow of the supply chain. In light of the above, the recent case of Leeds City Council v Waco UK Ltd [2015] EWHC 1400 (TCC) could be considered a moderate rebalancing of the scales towards the payers in ‘smash and grab’ cases. It is a timely reminder that technicalities can be worked both ways. Therefore it is worthy of careful note by all those who might at some time need the assistance of the Act to get paid. Waco UK Ltd (‘Waco’) won a ‘smash and grab’ adjudication against Leeds City Council (‘LCC’). LCC did not pay, so Waco started summary judgment proceedings. LCC resisted the action and applied to the Court for permission to challenge the adjudicator’s decision. Summary judgment was not given and LCC was awarded permission to challenge on the proviso that it paid the sum awarded by the adjudicator first, which it did. LCC applied to the court for a declaration that the payment application, which formed the basis of the adjudication, was invalid because it was submitted too early. For example, it was submitted before the contractual due date and that, because of this, the adjudicator’s decision was wrong and the money paid over should be re-paid (plus interest). It succeeded and got its declaration. In arriving at this decision, the details of all the payment application submissions made by Waco throughout the contract were scrutinised. The submission dates were compared to the contractual due dates to see if they complied with the contract provisions and, if they did not, evidence of any agreement between the parties to accept the non-compliance was sought. No contractual justification was found for interim applications to be made on any dates other than those stipulated in the contract. On the particular facts of the case, it was found that by their conduct (repeatedly accepting and paying interim applications that were submitted a few days after the contractual valuation date) the contract administrator and LCC had agreed that small degree of flexibility in the submission dates but no evidence was found to support a similar agreement to the early submission of applications. The relevant application was submitted six days early, it was not valid and could not therefore form the basis for an entitlement to payment. Even though the detailed findings are specific to the case, the message to be taken from it is that if you are going to try to enforce your rights on a technicality, you should make sure your own administration is bullet-proof first. Do not let the submission of applications drift and if there is going to be a delay, get specific agreement to any change from the Employer’s side and, as always, keep careful records.   About the author: Sarah E Phillips is a solicitor with Thomas Eggar LLP This article was published on 29 Jun 2015 (last updated on 29 Jun 2015). Source link

WSP Parsons Brinckerhoff has agreed to buy the industrial water consultancy business of global oilfield services company Schlumberger. Acquisition of the 250-employee business will enable the company to provide water consulting services to industrial clients worldwide and will establish a presence for WSP in Chile and Peru. The acquisition will also add to the company’s presence in a number of, including the United States, the UK, Colombia and Mexico. “The industrial water consultancy team will bring WSP an increased presence in the attractive global water market, more specifically, in the supply, management, control and environmental protection of water,” said Alexandre L’Heureux, the incoming president and chief executive officer of WSP.  “We are strengthening our presence in South America, a region we are targeting in our 2015-2018 strategic plan. The transaction is expected to close in the third quarter of 2016.   This article was published on 20 Jun 2016 (last updated on 20 Jun 2016). Source link

Tideway, the company established to construct the Thames Tideway Tunnel in London, has listed bonds totalling £100m on the London Stock Exchange. Above: Preparatory works are already under way in central London Linked to the retail price index, £50m will mature in 2048 and the remaining £50m in 2054. They have deferred purchase dates of June 2020 and June 2021. Tideway is stumping up £3.1bn of the super sewer project’s total £4.2bn cost, with the remainder coming from Thames Water.  Last month Tideway agreed a £700m loan from the European Investment Bank (EIB). Tideway chief financial officer Mark Corben said: “This innovative, deferred-purchased bond issue marks Tideway’s debut on the capital markets.  Combined with our loan recently agreed with the EIB, it will help secure the financing for our long-term investment programme, locked-in at 2015 rates. It is another key step forward in our work to clean up the River Thames.” Main construction work on the Thames Tideway Tunnel is due to start later this year and be completed by early 2024. Construction of the £4.2bn project (2011 prices) will be under three main contracts: BMB JV (BAM Nuttall, Morgan Sindall and Balfour Beatty) has the £416m West contract FLO JV (Ferrovial Agroman UK and Laing O’Rourke Construction) has the £746m Central contract CVB JV (Costain Vinci Construction Grands Projects and Bachy Soletanche) has the £605m East contract.  Stretching 25km through the heart of London, the main tunnel’s inner diameter will measure 7.2 metres. It will have a storage volume of 1.24 million cubic metres and run up to 66 metres underground, largely following the course of the river. Tideway is the trading name of Bazalgette Tunnel Limited, established in August 2015. Its shareholders are a consortium of investors comprising funds managed by Allianz Infrastructure Luxembourg, Amber Infrastructure Group, Dalmore Capital Limited, and DIF from the Netherlands.     This article was published on 3 Jun 2016 (last updated on 3 Jun 2016). Source link

Good news for the construction industry of Britain, as construction output has increased by 1.5% in the last three months. This statistic is lead by a 15% growth in construction throughout the North West, which official data has shown is at least 10 times the national average for growth rate. New housing in the North West has been of incredible value to the construction industry as a whole over the country, with the value increasing by £368 million in this quarter compared the the same quarter last year (2017). According to the Office of National Statistics (ONS), the output of new infrastructure has also seen significant growth, which puts Britain’s construction industry in a steady position before the new year and before Brexit becomes reality. The North West has become a hustle and bustle of new housing developments, but even though this comes as welcomed news, it is believed there is still more to be done. Although encouraging, a wider range of residential property needs to be explored, as the vast majority of North West builds are being marketed to suit the first time buyer. Regardless, this is still very positive with huge benefits being spread across the North West and beyond, the fact new buyers are being targeted more than any other buyer is due to the Help To Buy scheme taking place. The government run scheme was launched five years ago and is available until 2020, although aimed at any home buyer, not just first time buyers, the Help To Buy scheme is only accessible on purchasing a new build property. A buyer is required to raise 5% of the properties value as deposit, which is much less than the previous 10%+ which first time buyers often struggled to provide. Since the launch of the Help To Buy scheme, first time buyers have gone from accounting for 37% of mortgages to 51%. Given there is less than two years left of the scheme definitively being in motion, the British government are eager to get things moving in terms of new construction developments in the residential sector. This is not just for the first time buyer, more bungalows have been proposed to help the elderly move from larger housing and family homes are being thought of for those who need to up-size their property. It is widely thought that fewer homes than are needed are being constructed as more and more people are wanting to get their foot on the property ladder. However, the statistics come as welcomed news that the construction industry is heading in the right direction for a successful future in terms of new residential builds.   

Utilities infrastructure provider GTC has signed a deal for the provision of gas, electricity and fibre networks to a Bovis Homes development in Wellingborough, Northamptonshire. Stanton Cross is a £900m development of 3,650 homes and 144,000 m2 of commercial space. GTC will make the electricity connection from the primary substation which is expected to serve all the planned homes and commercial properties. To provide for potential further homes should they go ahead, GTC will also install a second duct to allow for the installation of a new, GTC-owned, primary substation on site. Every home will have fibre optic cabling, with unlimited download and upload speeds, and will not need a satellite dish or television aerial. GTC will install a fibre integrated reception system (FIRS), which means that satellite and digital television can be received via a community dish and aerial, with the television signal transmitted by the fibre-to-the-home network Bovis Homes Group land director John Lougher said:  “Technology plays an increasingly important role in our lives, especially in our homes and businesses where high-speed fibre and a super-fast Internet connection is in such demand. We are delighted that future businesses and residents of Stanton Cross will benefit from this very latest technology by GTC.”     This article was published on 12 Jul 2016 (last updated on 12 Jul 2016). Source link