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Building Safety Act 2022 Adjudication Claims

Building Safety Act 2022 Adjudication Claims

High court ruling expands adjudication scope

A recent ruling in BDW Trading v Ardmore Construction confirms that claims under the Defective Premises Act 1972can be resolved through adjudication—even for defects from decades ago.

In a landmark decision, currently under appeal, the High Court recently confirmed that disputes related to the Building Safety Act 2022 (BSA) can be determined by an adjudicator. The ruling in BDW Trading Limited v Ardmore Construction Limited confirmed the wide scope of adjudication clauses and opened the doors for adjudications to be brought for historical defects under the Defective Premises Act 1972.

What implications does the ruling have on drafting dispute resolution clauses?

The ruling is likely to have major implications for the drafting of dispute resolution clauses  and parties to many existing construction contracts should expect that disputes will be brought in adjudication. This includes not only Defective Premises Act claims, but also for misrepresentation and mistake.

Parties should review their existing contracts and existing disputes, particularly in relation to Defective Premises Act claims, to consider whether, tactically, these claims might now be run in adjudication rather that in litigation or arbitration. Parties negotiating new contracts should also consider including very clear carve out wording for tortious claims if the ambition is to prevent these types of claims being adjudicated.

How can companies protect themselves?

There are several ways that companies can help protect themselves:

  • Companies should assess which prior contracts could be at risk of a claim under the extended limitation periods.
  • The records of such historic projects should be reviewed to determine what information is (or is not) available, with assessment as to how these can be accessed quickly.
  • As there is now a 15-year liability period, records should be kept for at least that period in a way which provides suitable access. It is not helpful if it takes a month to retrieve the records from the archive.
  • As liability periods are longer than previously, it may be necessary to amend contracts, subcontracts, and other agreements, such as warranties and guarantees, to account for the longer liability period. For example, requiring consultants to maintain Professional Indemnity insurance for 15 years instead of the current standard of 12.
  • Where claims are made or threatened under the BSA, suitable representation should be put in place as soon as possible. Adjudication is a fast-paced, rough and ready process, so it is useful to have an established relationship with a team that has the relevant knowledge, skills and experience to represent you in a high pressure and time constrained environment.
  • Claims under the BSA will be made by claimants who will have obtained detailed expert evidence. Efficient provision of expert evidence for the defendant is vital.
  • Where there are site inspections available, they should be viewed with the expert assistance of construction and legal professionals. This is particularly important to collate the best possible defence in the absence of relevant documentation.

Adjudication in the face of the BDW decision

Because it is not meant to be a final tribunal, adjudication is a fast-paced (weeks rather than months) process with very limited time for disclosure, and even less to properly consider disclosed documents. Decisions can be revisited in courts, but the general rule is that parties will have to comply with the decision, including making any payments, before that revisit can begin.

Defending an adjudication is always difficult given the short time allocated and this is a significant challenge, especially since companies often have limited records of projects because of the passage of time. Finding documents may take time or be impossible.

This was a point considered in the BDW case, with the TCC deciding that it would not prevent the enforcement of the £14m decision. The court determined that Ardmore’s record keeping was deficient, and as it was that failure that rendered it dependent on BDW’s disclosure, it was not unfair. The court did not consider the argument that Ardmore had no reason to keep documents beyond the previously standard limitation periods. While that potential argument remains open, defendants need to operate on the assumption that a lack of records will not provide a suitable defence.

 

SPACE COURT A truly out of this world project!

You might be surprised to learn that the world’s most expensive construction project, is in fact not technically “in the world”. Rather, it can be found floating approximately 400kms above the Earth’s surface, where it orbits the planet 15 times a day. It is of course, the International Space Station or ISS for short.
Originally conceived by the Americans in the dying days of the Cold War (but needing the financial input of their old foes to make it a reality) the idea of building a space station, where human beings could live and work seemed straight out of the pages of science fiction. However, the launch in 1998 of the first section marked the culmination of what was to be the world’s largest co-operative programme in science and technology, involving the collaboration of 4 principal partner states and 11 other countries represented by the European Space Agency (ESA).
Weighing in at approximately 400 tonnes and covering an area the size of a football pitch, the total build could not be carried out in advance. There was quite simply no rocket up to the job. Instead, the various parts have been constructed at locations around the world, by a myriad of parties at differing times, before eventually being transported over the course of 40 missions and finally assembled in situ. Nothing like a challenge! To date the ESA estimates this mammoth project has cost in total (including development, assembly and running costs) $100billion.
Whilst collaboration on such a scale is a truly astronomical feat, what happens if things go wrong? As on Earth, construction projects in outer space are still prone to the same issues.
Who’s in charge?
From the first manned Russian space mission in 1961, it was soon evident to those involved in space exploration that activities this sphere required regulation. In addition to a set of fundamental assertions, such as the right for all to explore space and that no one country can own land (sorry America, just planting your flag on the moon doesn’t mean it’s yours!) a series of treaties, conventions and agreements have been implemented to ensure peace reigns in the final frontier!
As regards the ISS specifically, integral to its legal framework, is the ISS Intergovernmental Agreement (IGA). Signed by all the governments involved in the project, this allows each of them to extend their national jurisdiction in respect of any activities, equipment or personnel relating to the parts of the station provided by them and for which they continue to be responsible. Consequently, the state court of each ISS partner is able to apply their own national laws to criminal matters, intellectual property rights and issues of liability.
In relation to liability specifically, the IGA established a “cross waiver of liability” between the five ISS partners and their related entities (such as contractors, sub-contractors, users and customers), albeit with some exceptions, such as damage caused by wilful misconduct or claims for bodily injury or death. However, the smooth running of this extra-terrestrial project depends largely on the art of diplomacy and its success to date can be measured by the fact that ISS is very rarely the subject of negative press headlines!
The future
To date, the space arena has largely been the preserve of state players but private companies are becoming increasingly important. From space tourism, with the race to send the first chartered flights into space (who will get there first- Branson or Musk?) to asteroid mining, the growth of the commercial sector means a defined dispute resolution process is increasingly necessary.
Indeed, Dubai, a late comer to space exploration but nevertheless a passionate one (it sent its first astronaut to the ISS in 2019 and more recently launching a probe mission to Mars) has recognised this need. Earlier this year it announced the creation of a “space court” at the Dubai International Financial Centre (DIFC) Court, an independent, arbitration centre founded on the principles of common law which has already enjoyed much success in attracting foreign companies to arbitrate their commercial disputes. By creating a specific “space court” it is hoped that relevant companies and institutions, wherever they are based, can now take any grievances before the tribunal and further, any new contracts will be able to specify the “space court” as the designated forum for any future disputes.
For the moment, construction continues on the ISS with the intention that it will continue in service for at least the next few years. However, as the saying goes all good things must come to an end and having navigated a way through all the trials and tribulations of its construction, those involved now need to turn their attention to the question of how and who will be responsible for the “out of this world” task of its deconstruction?

References
1)www.esa.int
2)www.iss.tass.com
3)www.nasa.gov
4)These 11 laws are what keep space from becoming the wild west (businessinsider.com)
5)Dubai creates ‘space court’ for out-of-this-world disputes | The Times of Israel
6) How the most expensive structure in the world was built – BBC Future
7) International Space Station, facts and photos (nationalgeographic.com)
8) Dubai creates ‘space court’ for out-of-this-world disputes | The Times of Israel

Artificial Intelligence in Construction Disputes

Construction Moneylaw

Once upon a time, artificial intelligence, or AI (“the theory and development of computer systems able to perform tasks normally requiring human intelligence”) seemed nothing more than the fanciful imaginings of Hollywood movie directors, in films such as A.I. and I, Robot. However, today, AI in all its varying guises, is rapidly becoming an integral part of our everyday lives. Just ask Alexa!

Indeed, in recent years the, the infiltration of AI into the bricks and mortar world of construction is clearly evident, with the introduction of such AI developments as self-driving machinery and off-site construction of building components by robots, to name but a few.

However, it is not only in the more physical aspects of this industry that AI has started to make in-roads but also in the claims dispute process. Here, AI is not only helping to minimise the possibility of disputes but also to secure their prompt resolution, should they ultimately occur.

According to Ben Allgrove, an IP partner at City law firm, Baker & McKenzie, recent developments in more powerful computer processing power, better algorithms, big data and investment from technology companies has created the “perfect storm” which has led to “a huge breakthrough in the ability to use machine learning to produce outcomes and solutions”.

To date, AI technology has largely been employed by the legal sector in two principal areas: e-discovery in litigation, where the machine-learning technology of predictive coding is employed to identify relevant disclosure documents and secondly, the extraction of data from documents, generally for the purpose of corporate due diligence exercises.

In relation to construction disputes specifically, AI is increasingly being employed in avoiding disputes in the first place. For example, automated contract reviews which will allow for a quicker and more cost-efficient analysis of contracts, thereby resulting in a greater understanding of possible risks. Likewise, where the volume of contracts entered into is considerable (as is often the case on construction projects), the subsequent ongoing automated management of key contractual obligations, subsequent amendments etc, can greatly help to minimise risk.

Where a client is unfortunately already embroiled in dispute resolution, AI searching and clustering functionalities can be employed to analyse data, identifying links and patterns which allows those involved to gain a greater grasp of the facts of the case.

However, where it really gets exciting is when AI is used to predict the outcome of cases. Recent research projects have sought to develop machine learning algorithms to predict the decisions of the European Court of Human Rights (ECtHR) and the US Supreme Court. In the case of the ECtHR, 79% accuracy was achieved and in the case of the Supreme Court, 70.2% (particularly impressive in the latter case when compared with the 66% success rate predicted by human experts).

Interestingly, in the ECtHR project, Dr Nikolaos Aletras (head of the study) commented that in making their decisions judges were clearly influenced to a greater degree by the facts of the case rather than the legal arguments. Although there is still much work to be done, it is hoped that the machine learning algorithms can eventually be used as the basis for identifying and consequently prioritising those cases where violation of the European Convention on Human Rights is most likely.

Although this predictive technology is still largely in its infancy, there are already several platforms available. For example, US owned Lex Machina which offers predictive services based on a collection and analysis of historical data from past case law, trends in judges’ rulings, legal strategies of opposing counsel, and winning arguments, allow the user to make informed decisions about matters such as possible transfer of venue and the likely length of litigation. Likewise, Predictice which has already trialled its software with City firms, Dentons and Taylor Wessing, claim that by applying machine learning techniques to case law a statistical analysis of litigation probability can be obtained which in turn can be used to “optimise litigation strategies by comparing their chance of success and identifying success levers”. It is anticipated that eventually by being able to assess the potential outcome of a case, lawyers will be able to adjust their pricing according to risk. Very welcome news!

Conclusion

It is hoped that by using such platforms, those involved in construction dispute resolution will benefit considerably, both in terms of time and money saved when it comes to deciding whether the high-risk strategy of litigation is worth pursuing or alternatively deciding that other forms of resolution or indeed settlement, may ultimately be more appropriate.

Although no-one can deny the importance of these technological advances, we are still a long way off “general AI”, with most applications being utilised for very specifically defined functions. Human input is still very much a key ingredient in the world of construction claims disputes. Just ask Alexa!

References

1)10 Examples of Artificial Intelligence in Construction (trimble.com)

2) How to: Set free your robo-lawyer | Feature | Law Gazette

3) AI ‘lawyer’ predicts outcomes of human rights cases | WIRED UK

4) Artificial Intelligence and Construction Law: It’s here, don’t be left behind (fenwickelliott.co.uk)

5) AI and Construction Law: an essential and inevitable partnership – Part 2: Dispute resolution and    predicting dispute outcomes (fenwickelliott.co.uk)

6) How Law Firms Are Harnessing Innovative IT | DPS Software

7) The robot judge – AI predicts outcome of European court cases – Legal Futures

8) Machine learning algorithm predicts Supreme Court outcomes | Daily Mail Online

9) Dentons pilots predictive litigation technology – Legal Futures

10) How Artificial Intelligence Can Predict Trial Outcomes & Help Justice Prevail (analyticsindiamag.com)

11) Oxford English Dictionary

Data Mining in Construction

Data mining, the practice of discovering patterns or trends through searching through large volumes of data, is one of the ways in which new technology is set to transform construction. In an industry that generates large amounts of ‘big data’, the potential for data mining to streamline processes and uncover efficiencies in construction is significant. While these methods are becoming familiar when applied to accident data to inform health and safety practices1, they are also increasingly being used to predict cost over runs2 and provide early warnings of structural health3.

Construction data typically comprises a mixture of formats, such as numeric, text, spatial and image files, which may be stored in several systems across a business group or company. Discovering patterns in this unstructured data by hand is a time consuming and complex task. Through utilising machine learning and statistical analysis, data mining makes it feasible for businesses to extract value from these data they already own and manage.

While the application of machine learning might already be transforming some areas of construction, how might it revolutionise the field of construction claims? Predicting cost over-runs is an obvious first step: if you can predict the factors which contribute to over-runs then you can address their main causes, avoid costly litigation and generate more realistic timescales for projects.

What about the most common causes of claims: additional work, delays and reduced productivity? In addition to mitigating some of their worst consequences, data mining has the potential to efficiently determine costs and the true cause of delays and budget over-runs. 

One feature of construction claims that serves to complicate the use of data mining techniques is the unique nature of each claim. Construction spans a wide range of sectors, and there are so many points at which projects may encounter a problem that it is difficult to conceive of a universal technique that would apply across the board. However, there is scope for adapting a general model to suit each situation.

Recent research has set out to summarise the current status of data mining in construction and described how data mining is becoming increasingly employed within the industry4. Their observations on the current challenges of data mining in construction include:

  • Data security – a large proportion of construction data is privately owned and inaccessible for large-scale analysis.
  • Poor data quality in construction industry databases – multiple data collection methods and human error contribute to databases that are challenging to prepare for analysis.
  • Knowledge interpretation – a lack of domain experts and skilled practitioners able to translate the results into actions.
    • Limited case studies – current case studies are few and those that exist are limited geographically and/or in context.

They conclude that, in spite of these challenges, the popularity of data mining techniques in construction are increasing dramatically.

As construction claims experts and leaders in data-driven claims analysis, we at 53Quantum are always looking to the future of data use in construction. We expect to see an increase in data mining being used to support claims analysis, alongside other transformative technologies derived from the ‘big data’ and AI landscape.

  1. Construction Safety Clash Detection: Identifying Safety Incompatibilities among Fundamental Attributes using Data Mining (2017) Automation in Construction, Vol 74, https://doi.org/10.1016/j.autcon.2016.11.001
  2. Predicting construction cost overruns using text mining, numerical data and ensemble classifiers (2014) Automation in Construction, Vol 43, https://doi.org/10.1016/j.autcon.2014.02.014
  3. Data mining algorithms for bridge health monitoring: Kohonen clustering and LSTM prediction approaches (2020) The Journal of Supercomputing, Vol 76, https://doi.org/10.1007/s11227-019-03045-8
  4. Data mining in the construction industry: Present status, opportunities, and future trends (2020) Automation in Construction, Vol 119, https://doi.org/10.1016/j.autcon.2020.103331

Three Technologies Changing the Face of Construction

The construction industry is one of the biggest contributors to the world’s economy, employing 7% of the global workforce. Despite this, it’s one of the least digitised sectors, with many businesses employing fewer than 20 people and failing to utilise new technologies to improve efficiency, safety and cost. With the price of housing rising steadily, and a housing shortage in many countries around the globe, new technology is primed to help bridge these gaps in supply and demand.

We’ve been awaiting the advent of a robotic revolution since the 1950’s, and only now are we seeing its potential benefits for industry. We’ve all seen Boston Dynamics’ amazing robots; a ground-breaking sign of the transformation to come across all industries, not least in construction. For example, dangerous and repetitive tasks are commonplace in construction, and an area where industrial robots could increase safety and supplant human workers. In combination with AI, machine learning and 3D printing, the digital landscape in construction is shifting rapidly.

With COVID-19 causing even more pressure to accelerate digitisation, it’s going to be an amazing decade for construction. We at 53 Quantum have put together this infographic to highlight some of the ways in which this digital transformation is set to change the face of construction – the future is here!

Three Technologies Changing the Face of Construction - Infographic

Interesting Facts About Apple Campus

During the last two years of Steve Jobs’ life, alongside running and managing Apple, Pixar and other operations, he obsessively worked on the design and planning of Apple’s next headquarters. Co-workers at Pixar joked that the new campus was Jobs’ next film because he put so much time into it.

He envisaged a workplace that seamlessly blended the outdoors and indoors whilst enjoying a genuinely seasonal, natural Californian feel throughout. Its design aimed to encourage a collaborative spirit between employees, regardless of their rank.
With these lofty ideals and the industry-leading architects Foster + Partners behind him, he designed the striking ring-shaped Apple Park Campus. Combining stark minimalism with nature-centric extravagance, no material or custom element was too expensive.

Completely sustainably powered and designed to withstand all seasonal weather that California could throw at it, the campus utilises elements such as 9,000 carefully selected local trees, thousands of square metres of solar panelling and staggeringly extensive underground parking systems.

By taking over the remains of the Hewlett-Packard campus, and turning these vast open grounds into a system that perfectly utilises and enhances the space, Apple have provided a working ecosystem that echoes every last aspect that makes Apple Apple. That was Steve Jobs’ goal, and Apple has more than made it a reality.
This five billion-dollar project has redefined the design of corporate headquarters, inspiring us at 53 Quantum to put together an infographic detailing some of the amazing features and facts that make up this architectural marvel.

Apple Campus Facts Infographic

Harnessing the digital transformation for construction claims

The construction sector is one of the least digitised industries in the world1 and stands to benefit greatly from the data revolution. Research suggests that by better exploiting the value of data, the construction industry could realise productivity gains of 14 to 15 percent and cost reductions of 4 to 6 percent2. So why does the industry appear so reluctant to adopt new digital technologies when the benefits are clear?

A recent report by McKinsey & Company2 highlights some of the characteristics of the construction sector that have contributed to it languishing at the bottom of the digital league tables. These include multiple subcontractors and suppliers working across diverse projects with little incentive to invest time in different digital tools for each job. Projects also vary widely in scope, timescale and type of construction, whilst R&D budgets tend to be limited and work often takes place in remote and difficult environments2. These factors contribute to managers in construction working with sub-optimal data tools and legacy software that is time-consuming, prone to errors and fails to deliver the right information at the right time. These problems become especially acute on a construction site when a delay or disruption occurs and accurate information is required to support a case for loss or expense.

In an ideal world, construction data would be collected to agreed standards and frameworks3,4.  There is still, however, scope for creating detailed and accessible analyses from limited data through the application of new tools and methods. Data preparation can be the most time-intensive part of an analysis but recent advances in data preparation software, such as Alteryx and Tableau Prep, streamline this process. These new approaches and digital tools can transform how we work in construction and present few technical barriers to their use. With the right knowledge, information can be organised across systems with ease, and key information delivered in comprehensive, simple visualisations.

In an industry where claims can range from thousands to millions of pounds, being able to drill down into the detail of why delay and disruption occurs, and how it affects costs, can make a significant difference to the outcomes of a claim.

Using data commonly held by construction project teams, simple models can be built to explore the cost implications of these disruptions. Once built, the additional complexities of each claim can be added to the model to further support a claim. 

Understanding how data in construction is used also allows us to improve and inform how on-site data is collected, enabling its analysis to be as rapid and straight-forward as possible.

One benefit of the construction sector being at an early stage in its digital transformation is that we have the opportunity to work across the industry to capitalise on its impact. We at 53Quantum are proud to be pioneers in data-driven construction claims and to be leading the way in this vibrant and competitive industry.

  1. McKinsey Global Institute (2017) Reinventing construction through a productivity revolution: https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our-insights/reinventing-construction-through-a-productivity-revolution
  2. McKinsey and Company (2019) Decoding digital transformation in construction: https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our-insights/decoding-digital-transformation-in-construction
  3. RICS data standards: https://www.rics.org/uk/upholding-professional-standards/sector-standards/construction/rics-data-standards/
  4. Open Data Institute (2020) Case study: Creating a standard to help people find construction knowledge: https://theodi.org/article/case-study-creating-a-standard-to-help-people-find-construction-knowledge/

10 of the Top Construction Projects in the World

Human societies have always looked to build the biggest and best monuments to their ingenuity, resources and craftsmanship. From the Empire State Building, to the Eiffel Tower, and the Great Pyramids of Giza to the Great Wall of China, we’ve always looked to build the biggest and best.

Mind blowing historic building projects now litter travel-minded folks bucket lists everywhere, and they make up a huge part of the historic tapestry.

But it’s 2019 now. We need to talk about the Burj Khalifas and Libyan Irrigation projects of the world. For the first time in history, there are societies wealthy, powerful, and most importantly, cohesive enough to build spectacularly huge projects.

By working together with our geographical neighbours, we’ve been able to give the world some truly unbelievable, innovative projects. The International Space Station leaps to mind as a collaboration between nations.

With so many stunning projects continually on the go around the planet, we at 53 Quantum thought it’d be an idea to put together a quick infographic of ten of the biggest and best. Of course, there’ll be examples we missed and things we left off, because how do you compare a massive railway restoration and modernisation with a super skyscraper project? Apples and oranges!

Nevertheless, here are ten of the world’s most impressive construction projects.


Data Analytical skills and the use of agile Software within the Water Industy

WATER

As a quantity surveyor with twenty years’ experience, I have been focussing these past five years in developing my Excel skills. During this period, I also discovered a new piece of fantastic software, called Tableau. Following some eighteen months of learning and training in the use of this software, I have been thinking about some of the ways that water companies could potentially benefit from using software like this (if they are not already doing so) to derive real-time insights from their data.

Water companies could, for example, choose to track asset locations on an interactive map, drill down to the required level of detail, create custom area maps, look at water flow rates in those areas, water levels, analyse which plant assets are under performing and may need maintenance, or even replacing, look at people resource and cost data in an interactive and informative way.

If a water company uses Tableau Server to host dashboards, then they can permit team members / individuals to access the dashboards with updated information. Companies can also create dashboard notifications to inform them when certain metrics fall outside the parameters that have been set.

With the added benefit of being able to see and understand your data, and to be able to ask questions of the data as fast as you can think of them – is in my opinion – a progressive way forward. This is not to say that Excel cannot do charts and graphs and dashboards, of course it can, and it is a fantastically versatile and flexible programme which has been my main work tool for numerous years, but I’m a quantity surveyor who uses construction data – and now, with Tableau, I can do things that I would struggle to do using Excel.

If you have any questions or feel I could offer you any assistance in this area, please feel free to contact me. Thank you for your time.

Example of Tableau dashboards (and how to create custom maps) from Tableau Public; (see credits to the author on relevant dashboard link)

Thank you again.

#Water #Quantity Surveying #Rail #Utilities #Construction 

Water Based Dashboard Example: Links

https://public.tableau.com/en-us/s/gallery/water-testing-results-toronto

https://public.tableau.com/shared/RZFW9NTWR?:display_count=yes

Custom Advanced Mapping Options

https://public.tableau.com/en-us/s/blog/2016/01/how-make-and-save-custom-mapbox-map-your-viz

Creating quick Visulisations and Analysis

This is a short video that I made a year or 2 ago using Tableau and some toy Construction data in order to generate some quick visualisations and insights. Grab the latest version to try it for yourself at www.tableau.com If you get stuck and need some assistance, please feel free to send me a message and I will try my best to help. NB the software in this video is not the latest version. The telephone number on the bottom of video is 53’s old number. Note to self: it’s a scatter plot not a histogram! Be bold and prosper.