printer friendly versionPrint this Page

PFI/PPP Projects

Private Finance Initiative (PFI)/Public Private Partnership (PPP) projects represent alternative ways of financing and procuring public sector facilities. The principle behind these projects is relatively simple. If major capital expenditure is not to be funded by direct taxation, PFI offers a way forward by enabling assets to be procured “off-balance sheet” on behalf of a municipality or national government body through financial investment by the private sector. The private sector’s repayment and profit is in turn secured by the operation of the facility for an agreed period.

Although the idea of public and private sector partnership originated in the UK, PFI/PPP projects are now undertaken in many countries, and have been used to provide a wide variety of facilities, ranging from bridges, tunnels and roads to schools, hospitals and even defence facilities.

These projects pose a number of legal challenges:  to achieve the quality of the asset/facility constructed, to give security for the funders providing the finance and to allocate risk and responsibilities between the participants.

Advising on such projects and dealing with disputes resulting from them requires genuine expertise. Keating Chambers’ reputation in this area means that our members are frequently called upon to give advice and have appeared in landmark cases arising from PFI/PPP projects in which the law has been developed.

The Dudley Hospitals PFI project led to a £34 million dispute between main contractor and mechanical and electrical sub-contractor in Emcor Drake & Scull v Sir Robert McAlpine [2005] 98 Con LR 1, and the case was argued in the Court of Appeal by a Keating Chambers team on the issue of the scope of a letter of intent.

Another leading reported case, Midland Expressway Ltd v Carillion Construction (No. 2) [2006] CILL 2317, was heard in the Technology and Construction Court and has created widespread interest and, indeed, concern, amongst those engaged in PFI projects.  The case concerned the construction of the tie-ins between the M6 and the new M6 toll road.  The Court held that provisions in a building contract that restricted a contractor's right to interim payments to a proportion of the employer's entitlement (Equivalent Project Relief) would be unenforceable as when ‘pay-when-paid’ provisions contrary to the HGCRA 1996.  Since such clauses have been widely used in PFI projects, the implications are considerable.

While members of Chambers were involved as counsel in both these high profile cases, advisory and negotiation work relating to PFI/PPP projects is carried out with the intention of avoiding recourse to the Courts.  Nevertheless, our barristers use the same powers of analysis and understanding of these forms of procurement as if litigation might result, so that the parties are fully advised of their legal position at every stage.


Further Information
For further information on how our members can assist you, please contact the Senior Clerks, John Munton and Nick Child, in the first instance, on +44(0)20 7544 2600. They and their teams of Clerks will be pleased to advise you on the member of Keating Chambers appropriate to your requirements.