It's been yet another busy year for construction, with BIM developments, greater use of modern methods of construction, looming Brexit, increased insolvencies, building safety progress, a brighter spotlight on diversity...    In this article, we take a look at some of the key legal changes and industry developments for the construction industry, and highlight a few things to expect in 2020.

Legal Changes 

Fewer disputes

[2019] EWHC 2651 (TCC)

This decision by the TCC provides further consideration of the right of a company in liquidation to refer a dispute to adjudication. It follows the earlier Court of Appeal decision in Bresco Electrical services Limited (in liquidation) v Michael J Lonsdale (Electrical) Ltd (“Bresco”) which we considered in an article earlier this year.

The facts

Can a Creditors Voluntary Arrangement (CVA) lead to a stay in the enforcement of an adjudicator’s decision?

In January of this year the Court of Appeal refused to stay enforcement of an adjudication award due to a CVA ((1838) Cannon Corporate Limited v Primus Build Limited [2019] EWCA Civ 27). Four months later another enforcement decision against a company subject to a CVA came before the Technology and Construction Court (TCC). This time a stay was granted – so what was the difference?

When a business is on the receiving end of a claim, it is faced with the prospect of having to incur significant costs to defend the action.

A defendant in that situation will usually be protected by the general rule that 'the loser pays the winner's costs'.

This means that if the defendant successfully defends the claim, the defendant can expect to recover a percentage of its costs from the claimant as ordered by the court if not agreed.

But what if happens if the claimant is unable to pay the defendant's costs?

The insolvency of one or other of the parties to a dispute has become commonplace in recent times, particularly in construction related disputes. Practitioners are becoming increasingly knowledgeable about the implications of insolvency on procedure and the potential remedies available.

The Technology and Construction Court has decided that judgment should not be stayed following a contractor's unsuccessful defence of an adjudication claim brought by its M&E subcontractor.

The case reaffirmed some key principles in assessing whether a stay is justified in adjudication enforcement proceedings:

Last year the Technology and Construction Court (TCC) held that a company in liquidation cannot refer a dispute to adjudication in circumstances where there are claims by a company in liquidation and cross claims by the other party1.

Since the Construction Act came into force over 20 years ago, it has been a central tenet of the construction industry that a party can start an adjudication at any time, on any dispute (subject to questions of crystallisation or the dispute having already been decided).

However, it is interesting that two recent Court decisions seem to have called this into question - Michael Lonsdale v Bresco and Grove v S&T.

In August 2018, in Michael J Lonsdale (Electrical) Limited v Bresco Electrical Services Limited (In Liquidation) 1 Mr Justice Fraser had the opportunity in the context of CPR Part 8 proceedings to clarify whether or not a liquidator can pursue a claim in adjudication arising out of a construction contract.