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Third party rights in construction contracts—checklist

Third party rights in construction contracts—checklist When drafting or negotiating third party rights provisions in a construction contract (see Practice Note: The Contracts (Rights of Third Parties) Act 1999 in construction contracts), the following should be taken into account: • Is the Contracts (Rights of Third Parties) Act 1999 generally excluded? Does the contract expressly exclude the conferring of rights/benefits on third parties by virtue of the Contracts (Rights of Third Parties) Act 1999 (C(RTP)A 1999)? Contracts typically contain a general exclusion clause in relation to C(RTP)A 1999 but, in construction agreements, this is commonly made subject to any relevant clause of the agreement conferring third party rights on specific parties—see for example Precedent: Third Party Rights Act clause. If there is a general exclusion, make sure that the clause conferring rights on third parties is carved out. • Third party rights or collateral warranty? If the contract provides that third party beneficiaries will have certain benefits, or rights to enforce the contract, does it specify whether such rights/benefits will...

Post-completion environmental issues (asset purchase)—checklist

Post-completion environmental issues (asset purchase)—checklist In an asset purchase transaction, the buyer acquires only those assets and assumes only those liabilities it wishes to acquire (as set out in the asset purchase agreement). Post-completion, the buyer may need to deal with specific environmental, health and safety (EHS) issues, revealed through due diligence. For example, the buyer may need to transfer or apply for a permit, join a packaging waste compliance scheme or improve health & safety documentation post completion. Common post completion EHS issues in asset purchase transactions include: • transferring environmental permits • checking whether the purchase has triggered any new obligations under environmental regimes, such as producer responsibility, energy efficiency and carbon schemes • addressing issues raised in any environmental audits and reports and any contract conditions • advising on environmental insurance and other risk mitigation strategies • obtaining reliance agreements or collateral warranties for reliance on environmental reports Transfer of environmental permits In an asset sale, the name of the operator/permit holder will change. As a result,...

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DPO appointment decision tree

DPO appointment decision tree Under Assimilated Regulation (EU) 2016/679, the General Data Protection Regulation (UK GDPR), certain organisations are required to appoint an individual to act as their data protection officer (DPO). The appointment can be internal, eg an employee of the organisation, or external, eg a consultant under a service contract. This DPO appointment decision tree will help you determine whether your organisation needs to appoint a DPO under the requirements of the UK GDPR. If your organisation has operations in jurisdictions outside the UK, you will also need to check whether local law or regulations require you to appoint a DPO in any of those jurisdictions. For more information on the role of the DPO, see Practice Note: Data protection officer or, for law firms, Practice Note: Data protection officer—law firms. For a checklist of issues to consider when appointing a DPO, see: Data protection officer (DPO) appointment—checklist. Whatever decision your organisation makes about appointing a DPO, guidelines on DPOs published by the Article 29 Data Protection Working...

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Payment in consultant appointments

Consultant appointments and the HGCRA 1996‘Construction contracts’ as defined in the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) are subject to the provisions of Part II of the HGCRA 1996 (subject to some exceptions). See Practice Note: Introduction to the HGCRA 1996. HGCRA 1996, s 104(1) provides that construction contracts include agreements for:•the carrying out of construction operations•arranging for the carrying out of construction operations by others, whether under sub-contract or otherwise•providing labour, or the labour of others, for the carrying out of construction operationsHGCRA 1996, s 104(2) clarifies that this includes agreements to carry out architectural, design, or surveying work, to provide advice on building, engineering, interior or exterior decoration or on the laying-out of landscape in relation to construction operations. Consultant appointments can therefore be caught by the definition of a ‘construction contract’ where the appointment relates to ‘construction operations’ as defined in the HGCRA 1996.Under section 105, ‘construction operations’ is widely defined and includes works that you would expect in construction and engineering projects, including...

Professional indemnity insurance in construction projects

This Practice Note looks at professional indemnity (PI) insurance in the context of construction projects—the requirement to hold insurance, the level and basis of cover and typical wording contained in clauses requiring PI insurance to be maintained. For a wider review of professional indemnity insurance, see Practice Note: Professional indemnity insurance—essentials.This Practice Note refers to a consultant’s obligations to maintain PI insurance, however main contractors and sub-contractors taking on design responsibility will also be required to maintain PI insurance and the principles referred to below also apply to those contractors.A contractor with no design responsibility may not consider it necessary to hold PI insurance, however, in the event that a contractor failed to follow the consultant’s designs, an employer may allege that the contractor made an ‘on-the-spot design decision’, which could trigger a PI policy. For more information, see Practice Note: Design liability in construction contracts—Responsibility for design under different procurement routes (in particular, the section titled ‘Traditional’).Requirement to hold professional indemnity insuranceA consultant’s appointment for a construction project will...

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Statutory requirements clauses (construction contracts)

Statutory requirements (currency) 1 References in this Agreement to any statute or statutory instrument include any statute or statu

Indemnity clause—infringement of third party IP rights (consultant appointment)

Indemnity

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Could a clause requiring consultants to pay back any shortfall in their billing target be treated as a penalty clause?

Could a clause requiring consultants to pay back any shortfall in their billing target be treated as a penalty clause? This Q&A examines liquidated damages and penalty clauses in the context of the following example scenario: The NHS pays a dental practice a set amount per year for the treatments it provides. If the practice doesn't meet its target, it must pay the shortfall to the NHS. Under the relevant dental consultancy agreement, dentists have an annual treatment target and get paid for each treatment performed. If the contract is terminated early, there is a clause which provides that the practice may require the consultant to pay back any shortfall in their pro-rated treatment target, to the extent that the shortfall has not been performed by any other consultant as at the date of termination. The question is, could a clause requiring consultants to pay back any shortfall in their billing target be treated as a penalty clause? Contractual liquidated damages clauses (a clause where the...

Do you have a straight forward contract for building works between a contractor and home owner?

Do you have a straight forward contract for building works between a contractor and home owner? We do not have a precedent contract in Lexis®PSL Construction that would suit these purposes. We suggest that an appropriate form of contract to use in these circumstances would be either: • JCT Building Contract and Consultancy Agreement for a Home Owner/Occupier,

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No reliance on advice meant that claim for damages for negligence failed (Darcliffe Homes v Glanville Consultants)

Construction analysis: The Technology and Construction Court (TCC) dismissed a claim for damages for professional negligence by a property developer against a consultant engineer after finding that the engineer had failed to act with reasonable skill and care, because the property developer had not relied on the advice given and would not have done anything differently had non-negligent advice been given. The court held that the property developer had failed to establish a sufficient nexus between a particular element of the harm for which it sought damages and the subject matter of the engineering company’s duty of care.

Restructuring & Insolvency weekly highlights—12 December 2024

This week's edition of Restructuring & Insolvency weekly highlights includes: clarification of the position of sole directors under the Model Articles and the interaction between UK sanctions regulations and in-court appointment of administrators (Re KRF Services (UK) Ltd), an analysis of the inalienability of occupational pensions (White v Manolete), a discussion of whether the professional indemnity insurer of an insolvent insured is to be treated in law as being liable in respect of the same damage as that for which its insured is liable for the purpose of enabling the insurer to pursue a claim to recover a contribution pursuant to the Civil Liability (Contribution) Act 1978 (Riedweg v HCC International Insurance Plc), plus a round-up of other news and cases for restructuring and insolvency professionals.