Clarkslegal LLP - Solicitors in Reading and London

Construction Law

Our dedicated construction lawyers enjoy a pre-eminent position in the construction sector, working on prestigious regional, national, and international projects. We provide commercially focussed advice, quickly anticipating and adapting to clients’ needs and changing requirements, minimising legal risk in a way that is cost-effective and provides value for money.

The wide diversity of our clients across the public and private sectors is notable and is reflective of the scope and extent of the team’s expertise. Our clients cover the whole built environment sector, from building owners to contractors and developers, to consultants and specialists.

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We have considerable experience of drafting, negotiating and advising on the terms of contracts for a range of clients (both public and private sector), contractors and projects including transport infrastructure, energy (our experience covers oil and gas, nuclear and renewables), healthcare, housing, hotels and leisure as well as on education projects.

We advise on a wide range of building contracts and operational contracts including industry standard form contracts (JCT, NEC, FIDIC, PPC, GC/Works) in addition to drafting and negotiating bespoke contracts. Our expertise covers major capital works right through to repairs and refurbishment and asset management from project inception through to the end of a building’s lifecycle. We are able to advise on policy, project structuring, tendering, construction, financing and operating issues.

We provide advice on drafting and negotiation of contract terms and conditions to clients across the industry: developers, owner occupiers, funders, tenants and purchasers, main contractors, specialist sub-contractors, consultants and insurers.

Our construction law team are experienced at drafting, negotiating and reviewing professional team appointments, partnering contracts and framework agreements for both private sector and public sector clients.  For example, for one client we have drafted and negotiated over thirty consultancy agreements across nine consultant disciplines, with almost all framework partners accepting our proposed form of contracts with little or no amendment. This work included workshops for our client’s staff and assisting with their presentations to tendering consultants, explaining the reasons for the use of the proposed standard form appointments and for the suggested, limited, amendments made thereto.

We also have extensive experience of acting for professional consultants, drafting and negotiating forms of professional appointment – the RIBA, CIC, ACE, SCALA, GC/Works and JCT CA forms - as well as a wide range of bespoke forms. When acting for professional consultants we seek to achieve a fair balance of risk with the client and pay particular attention to the core standard of care, limitations on liability, the fee payment mechanism and copyright issues – ownership of copyright and the scope of any copyright licence granted in favour of the client.

In addition to the drafting and negotiation of appointment terms, we regularly advise on the defence of professional consultants against claims for professional negligence and supporting consultants in fee recovery actions. We have experience of defending architect clients before ARB and RIBA disciplinary proceedings.

Our particular expertise in acting for architect clients is reflected in our partner John Wevill’s authorship of “Law in Practice: The RIBA Legal Handbook”, the standard textbook on construction law for architects.

We have extensive experience of acting for professional indemnity insurers, brokers and their insureds. We provide front end advice on the terms of the insured’s building contracts, professional appointments, collateral warranties and other security documents. We also specialise in insurance dispute resolution, in particular the defence of construction professionals in complex, high value disputes. We advise on PI and D&C policy wordings and have provided numerous seminars and workshops on insurance law topics for PI insurers and brokers.

Because of the relationships that we develop with our clients we believe we become integral to their project team. As a result we are able to assist in project managing solutions and identify and manage risks associated with complex projects. In addition, because the majority of key members of the team have contentious experience they are well placed to manage risks in projects and advise and draft to minimise or avoid such risks.

Project and risk management, including dispute avoidance, together with co-ordination of project teams, are an essential part of the project and construction work that we do. Advice in these areas is key to all the project and construction work we carry out, as identified in other sections of this site.

We advise on all aspects of procurement law and strategy, this being a key element of the majority of our client’s projects. We advise clients on appropriate procurement strategies for both new build and refurbishment works, all with the aim of helping clients to identify and therefore minimise project risks and ensure projects are delivered on time and budget. We have experience in all four EU procurement processes – open procedure, restricted procedure, competitive dialogue and competitive negotiation – and regularly advise on each.

Integral to any advice we give on a procurement process is the content of the tender documentation involved in that process. We have expertise in advising on and drafting tender documents both in the private sector and in the context of each of the four EU procurement processes.
We act for a number of groups of public bodies in projects involving a common aim and, as such, these projects involve a significant element of joint venture, with the form of the joint venture/collaboration varying depending upon the aims and objectives of the clients.
Integral to any project is the relationship with those with whom our client is working. Key to the success of that relationship is the legal documentation which supports it. The majority of the project work that we do will involve preparation of a project or framework agreement, specific to the client’s aims. Each of the projects requires a key legal agreement, supported by relevant additional documentation, to document the provision of the goods/works/services and other matters such as implications of breach.

We advise in relation to the drafting of the construction aspects of development and funding agreements, working with real estate, corporate and banking colleagues to achieve the optimum balance of risk for developer and funder clients and ensure that the funding and project documentation properly dovetail. We seek to ensure that funder requirements regarding security and warranties are clearly set out and consistent with the overall aims of the project.
We act for a number of clients in their procurement of strategic partners in a variety of areas including the higher education sector, housing association sector public services sector and waste industry.

Effective provision for novation is a key contractual tool for clients in planning, progressing and dealing with issues arising on construction projects. As design and build procurement is now the most popular form of procurement within the industry, our team has considerable experience of incorporating novation into the structure of design and build procured projects. We regularly advise on novation policy in terms of project structuring and risk profiling and providing and negotiating novation agreements.

We also have experience of advising design and build contractors on and drafting amendments to proposed deeds of novation, and negotiating with employers and consultants. We advise on novation of consultants and others down the supply chain on framework arrangements following insolvency of a design and build contractor and on the transfer of contracts and projects between social housing providers.

We regularly advise all sectors of the industry on the form and content of collateral warranties and schedules of third party rights, from drafting suites of documents for developers to ensure that purchasers and funders receive protection that is in line with market practice, through to negotiating limitations of liability on behalf of consultant, contractor and sub-contractor warrantors.

We advise on all forms of bond including performance bonds, advance payment bonds and retention bonds and whether they are bespoke or based on standard form such as the ABI Performance Bond.

We regularly advise on the use of performance bonds in the context of our wider procurement advice, particularly in public private partnerships where a special purpose vehicle may be used to provide the services in question. We have expertise in drafting and negotiating Agreements for Lease and Development Agreements with extensive guarantor and advance payment provisions and including for example escrow account packages and guarantor provisions in collateral warranties.

In addition, on behalf of other employer and end user clients (in both the public and private sector), we routinely advise on and draft bonds and guarantees for new build and refurbishment/fit out works, whilst also advising on the advantages and disadvantages of the various security options available, considering the financial and commercial implications involved and evaluating security bid submissions. Other documentation that we prepare and negotiate as a matter of course includes collateral warranties to be granted by contractors, sub-contractors and consultants to clients, funds, purchasers, landlords and tenants.

We are often asked to provide seminars and workshops for clients – employers, contractors, consultants and insurers for example. Recent topics covered include the legal implications of BIM procurement, the enforceability of adjudicators’ decisions, the RIBA Plan of Work 2013, payment provisions in JCT contracts and the do's and don’ts of professional appointments. This kind of client contact is very important, both in terms of building and strengthening relationships with clients generally but also to be available to answer queries relating to our clients’ day to day experiences in the industry.

Experience across the construction and energy sector is a major strength of Clarkslegal. We have extensive experience of drafting and negotiating EPC and O&M contracts in the energy sector in the UK, Russia, North Africa, the Middle East and South East Asia, as well as the resolution of high value and complex disputes relating to the energy sector in this country and internationally.

We have handled some of the largest procurements in this area nationally, including R&D schemes, renewable energy projects (in particular on- and offshore wind, solar PV, anaerobic digestion and waste to energy) and landfill diversion. For example, we have advised on two of the largest integrated waste management procurements ever conducted in Wales. We are also highly experienced at setting up large-scale PPP/PFI partnerships and joint ventures.

Through our training with the Chartered Institution of Wastes Management (CIWM), we have prepared a standard contract for lower value wastes services, where PFI is not required. This is in use by local authorities as a core precedent for waste and bespoke contracts across Wales and England and we continue to deliver training on the procurement and use of waste contracts on behalf of the CIWM.

Clarkslegal has also set up the Commonwealth Environmental Investment Platform (CEIP), a pan-Commonwealth network linking entrepreneurs and companies in the environmental and sustainable technology sectors to each other and to international investors. CEIP assists environmental SMEs in Commonwealth nations to share knowledge, increase awareness and facilitate trade and investment in environmental and sustainable technologies.

We regularly advise renewable energy generators and investors in particular in the solar PV sector in relation to funding issues, Electricity Market Reform generally, and RO, FiT and CfD regimes specifically.

We act for land owners, developer, authorities and housing associations, advising on a range of regeneration and development projects. Our advice covers site acquisition, planning and procurement, including drafting and negotiation of development agreements and construction documents to create cost-efficient, sustainable projects.

Our construction lawyers have been advising clients in the public and private sectors extensively on Building Information Modelling (BIM) and incorporation of BIM protocols and obligations into Construction Contracts, Appointments and supply chain contracts. We recognise that the demand for such advice will continue to increase across the industry, in particular following the government’s stated requirement for fully collaborative 3D BIM for public sector projects as a minimum by 2016.
We have wide-ranging experience of advising clients across all industry sectors in the resolution of high value, complex disputes both in the UK and internationally. We bring and defend arbitration, litigation and adjudication claims for contractors, sub-contractors and employers over all contractual and common law issues including for example extensions of time, final account claims, defects and professional negligence. We introduce below the processes we typically advise on and support our clients with.

Our construction law and dispute resolution teams have expertise in all forms ADR, including mediation, and the majority are trained mediation advocates.  We also have broad experience of arbitrations under the Arbitration Act 1996 and under the LCIA (London Court of International Arbitration) Rules and UNCITRAL Rules, as well as arbitrations before the ICC (International Chamber of Commerce). Our commitment to ADR processes is reflected in our being founding members of the first nationwide ADR organisation to be established, the Centre for Dispute Resolution.

We represent clients at direct party to party negotiations, mediations and star chambers and undertake all advocacy at mediations on clients behalf.

We also have extensive experience of advising clients from across the industry in relation to numerous other hybrid and innovative forms of ADR, including for example expert determination and Star Chambers, setting out the relative advantages and disadvantages of the available processes and guiding the client through to successful resolution of their dispute.

We regularly advise clients in relation to statutory adjudication under the Construction Acts, as well as contractual adjudication. An adjudicator’s decision on an important point of principle can help clients, during or after completion of a project, to resolve either an entire dispute or discrete elements of a dispute, sometimes in conjunction with other ongoing negotiations. We recognise the benefits for our clients of being able to resolve construction disputes quickly and relatively cheaply through adjudication. Our extensive experience covers every aspect of the adjudication process, acting for both referring and responding parties, tactics through to successful enforcement – or resisting enforcement – of an adjudicator’s award.

Where legal proceedings are necessary, we have the specialist experience necessary to carry out all the work required to bring and defend of claims in the specialist Technology and Construction Court.