The construction industry – recovery on its way?
As new Site Operating Procedures are introduced and some sites start to reopen, expert Construction Solicitor David Morris explores the latest for the construction industry, and advises those considering legal action to act fast.
Construction Site Operating Procedures
The Construction Leadership Council has launched version 3 of its Site Operating Procedures – which you can see here – and, for the first time, it includes measures to be taken ‘where it is not possible to follow the social distancing guidelines in full.’
It states that ‘if you are not able to work whilst maintaining a two metre distance, you should consider whether the activity should continue and, if so, risk assess it using the hierarchy of controls below and against any sector-specific guidance.’
The ‘Hierarchy of Controls’ is a new introduction and includes a reduction in the frequency and time workers are within 2 metres of each other and the numbers of workers involved in such tasks. Among the guidelines, it states that those workers should work side by side or facing away from each other, and remain together in teams, working away from others where possible.
This is a significant shift. While clearly a clarification of the guidelines, it is also perhaps the first relaxation of the procedures we have seen.
Build UK stated yesterday that, ‘following the Easter break, which offered the opportunity to re-group and look ahead, more sites are expected to re-open, implementing new ways of working required for the social-distancing environment in which we now live.’ I have had conversations both last week and in the last few days with clients returning to work, and I’ve seen and heard news this week of sites and suppliers choosing to open back up. Perhaps the recovery is on its way?
What is sure is that, wherever you are in the contractual matrix, if your site is open or if you are on site, stay safe, and follow the guidelines. Some sites are opening with fewer trades, others are ploughing on, but the creation of new hospitals has shown it can be done. Ensure you keep records of what is happening on site and issue your contractual notices accordingly.
Court hearings & adjudications
What is clear is that the courts are seeking to adopt a ‘business as usual’ approach to life in lockdown with cases deemed ‘urgent’ given priority and remote hearings being used for those which make the grade. The High Court’s plan can be found here and the county court’s here.
There are no free ways out of adjudications right now as Millchris Developments Ltd v Waters  4 WLUK 45 recently saw the TCC refuse an application for an injunction to prevent an adjudication continuing, despite the contractor arguing that they could not comply with the strict deadlines amidst COVID-19 and the current restrictions.
In essence, Mrs Justice Jefford saw little merit in the contractor’s arguments, with working from home making little difference to the ability to transfer documents and record evidence, for example. She did say that there might be circumstances where an injunction could be granted, but the pandemic was not a sufficient reason in itself, and the adjudicator had sensibly granted an extension for the provision of a response. Adjudications carry on as normal!
I have seen a rise in disputes in the last few weeks as some clients appear to be coming to terms with largely being off site and are perhaps looking in a litigious direction to make up for the lack of cashflow. The message the courts wish to convey in that regard is that they are open, and my message to those with potential disputes that need settling is to get moving on them. Of course I might say that, but as long as you are making a sensible commercial decision, there is no reason to delay if the sums are due and it would be wise to get ahead of the court backlog that will undoubtedly ensue in due course.
Until the large housebuilders reopen their sites, we won’t be back into full swing, but we are closer now than we have been in the last three weeks, and there are signs that Easter is signalling new life across the sector. We will see what the next few weeks bring.