Keating Chambers Construction Conference:…

To mark the release of the 12^th Edition of Keating on Construction Contracts, and celebrate 70 years of this seminal text, Keating Chambers hosted a conference which brought together leading experts to discuss pressing issues and future trends in construction law. The programme featured a series of insightful panel discussions covering adjudication, methods of dispute resolution, ‘thorny’ contractual topics, the Building Safety Act 2022, and standard form contracts from both an English and International perspective. Sir Vivian Ramsey delivered the keynote address, and delegates also heard from Samuel Townend KC about his year as Chair of the Bar Council, and from Mr Justice Constable about the work of the Building Safety Act working group. This article summarises the key takeaways from the conference.

Keynote Address: Sir Vivian Ramsey

Sir Vivian Ramsey presented a historical overview of Keating on Construction Contracts, detailing its origins, the influence of its co-authors, and its unique plain language approach. He traced key developments in construction law over the past 70 years, including the increasing complexity of construction contracts, the evolution of new methods of dispute resolution such as adjudication, and the significant ‘internationalisation’ of construction practice. The discussion also commented on the fluctuating role of negligence in construction practice from Anns v Merton LBC to Murphy v Brentwood DC, the impact of statutory obligations, the advent of notice provisions, collateral warranties, and concurrent delay. The discussion concluded with a consideration of future developments in construction, such as the drive towards green energy, ongoing international construction projects, and the potential impact of artificial intelligence.

Panel 1: Adjudication Past, Present and Future

The first panel comprised Simon Hargreaves KC, William Webb KC, Brenna Conroy, James Frampton, and Daniel Silberstein (Hawkswell Kilvington). This talk delved into the well-established yet evolving process of adjudication, marking nearly 30 years since the enactment of the Housing Grants, Construction and Regeneration Act 1996 (“the HGCRA”). While acknowledging its undoubted success, the discussion highlighted several aspects of adjudication that are ripe for reform.

Unilateral Withdrawal from Adjudications: The panel debated the practice of the referring party unilaterally withdrawing from an adjudication once it has commenced. This practice can be exploited to delay payment, for instance, where the referring party is under an obligation to pay, it can refer a dispute to adjudication, before ultimately withdrawing. In these circumstances, the responding party cannot bring its own adjudication for payment while the other is ongoing. Although the ability to withdraw can save costs and time in genuinely hopeless cases, the panel expressed a preference that withdrawal should only be possible via agreement or through a formal recording in a decision.
Default Costs Position: The panel noted that the default costs position (that each party bears their own costs) encourages spurious claims because the other party has no choice but to defend any referral to adjudication, often at very high costs. This has created a scenario where a spurious claim may be easily defended, but the other party will be forced to pay the requested sum because the costs of defending the adjudication are simply too high. Accordingly, the panel suggested the possibility of some costs repercussions or refinements of this default rule. Some solutions suggested by the panel included indemnity costs which respond to unreasonable or spurious claims in the same way they do during litigation, and also the introduction of a reserved power for the adjudicator to make costs awards in appropriate scenarios.
Multiple Submissions: The increasing prevalence of multiple, often unsolicited, submissions has rendered many adjudications unwieldy, driving up costs for clients. The Panel identified numerous reasons for this:
1. Adjudications are often done on paper, so the parties argue every point.
  1. Adjudicators are very concerned about the fairness of the hearing, and so often allow multiple rounds of submission to ensure this.
  2. Adjudication is by its nature rough and ready, meaning parties may not thoroughly consider their case at the earliest stage, as they do in litigation.
  3. Adjudication rules are not fully understood. It is a common misconception that the referring party has an automatic right of reply – this is not the case, and any reply has to be justified. Despite this, rejoinders and surrejoinders are frequently timetabled before the need has even arisen. Proper enforcement of this rule would prevent parties having several bites of the cherry in constantly reformulating their arguments. Parties ought to be held to their initial referral (within reason).
Transparency of Appointments Process: The panel raised concerns regarding the lack of transparency among some Adjudicator Nominating Bodies (“ANBs”) concerning their panel composition and the procedure for nominating and selecting adjudicators. The fees were also raised as an issue. There is little transparency over the fees and hours worked by adjudicators, but parties typically do not challenge these for fear of getting on the bad side of the adjudicators. This could be overcome by a fixed fees model which is assessed by reference to the value of the dispute, or by the parties suggesting hourly rates (which the adjudicator themselves will choose to accept or reject).
Abuse of Court Process: The panel noted that some parties have great (sometimes endless) enthusiasm for multiple adjudications on the same broader dispute. This is permitted by contract and statute. However, it is less appropriate for these parties to go to court to repeatedly challenge different aspects of the same development through multiple adjudications and subsequent court proceedings, cherry-picking arguments as they go. The existing abuse of process jurisdiction was suggested as a potential tool to address this issue.

Key Takeaway: While adjudication remains a cornerstone of construction dispute resolution, there are ongoing debates around procedural fairness, efficiency, and transparency that warrant future consideration and potential reforms.

Panel 2: Resolution of Construction and Engineering Disputes

This session offered a broad overview of the various dispute resolution mechanisms available in the UK, examining their strengths and weaknesses. The panel comprised Tom Owen KC, John McMillan, Mercy Milgo, Youcef Boussabaine, and Steven Willams (CMS).

The Technology and Construction Court (TCC): The TCC was presented as the gold standard for decision-making and due process, with experienced specialist judges operating under open justice and public scrutiny. Its high settlement rates suggest the forum focuses parties' minds on resolution. The TCC also provides crucial support to the adjudication regime. However, costs for lower-value claims can be prohibitive, and the potential underutilisation of regional TCC court centres was also noted.
Compulsory Alternative Dispute Resolution (ADR): Following the landmark decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 and corresponding amendment to CPR r. 1.4(2)(e), the panel discussed the courts' power to order parties to engage in any form of ADR, including mediation, and to stay proceedings to facilitate this. This is a wide discretion subject to not impairing access to the courts, pursuing the legitimate aim of quick and cost-effective dispute settlement, and proportionality. The aim is to overcome entrenched reluctance to negotiate and explore a wider range of settlement options.
Adjudication: Despite the flaws raised by the previous panel, adjudication was hailed as an “overwhelming success” and often "the only game in town" (per Coulson LJ in John Doyle v Erith) for most construction disputes due to its speed and the backing of a specialist court enforcement system – the TCC. While concerns about potential “ambush” tactics during referral were acknowledged, adjudicators possess the discretionary powers necessary to mitigate any unfairness.
International Arbitration: Arbitration offers a neutral forum for binding decisions, but it lies outside the national court systems, which is crucial for international parties who might be wary of foreign courts.
Mediation and Other ADR: Mediation, in its various forms, was lauded for being interest-based, creative, and flexible, offering solutions beyond the binary outcomes of court. It is seen as a crucial adjunct to formal processes like arbitration or court. Early Neutral Evaluation offered by the TCC was noted as being surprisingly underutilised. Dispute Boards were also regarded as valuable tools for dispute avoidance and resolution.

Key Takeaway: The UK boasts a sophisticated landscape of dispute resolution options, each with its own strengths and weaknesses. The increasing judicial encouragement of ADR, alongside a recognition of adjudication's unique position and the continued importance of the TCC and international arbitration, shapes the current approach to resolving construction and engineering disputes.

Sam Townend KC: Life as Chair of the Bar

Former Chair of the Bar Council, Sam Townend KC, reflected on his recent year in the role. He recounted various experiences, highlighting the bizarre and interesting challenges faced while leading the profession. A central and recurring theme is the need to protect the legal profession against political attacks, and attacks from the media, coupled with efforts to improve the practicalities of legal work, such as remuneration for publicly funded lawyers and the state of court buildings. Ultimately, the talk offered a personal insight into the responsibilities and unexpected events involved in leading the Bar Council, framed by a commitment to serving the legal profession and the public good.

Mr Justice Constable: Building Safety Act Working Group Update

Mr Justice Constable provided an update on the work of a Building Safety Act (‘BSA’) working group, set up by Mr Justice Waksman. The group is comprised of three judges, two barristers (including Jonathan Selby KC of Keating Chambers), and three solicitors. The group was established not to suggest changes to the substance of the Act, but rather to improve procedural efficiency. To this end the group has:

Created an online database for relevant BSA case law from both the FTT and the TCC.
Suggested changes to the TCC Guide, such as by requiring parties to make plain that they have a BSA related-claim at the beginning of the process.
Proposed a scheme for co-managing BSA cases that span or overlap in both the FTT and the TCC. This will alert judges to case management issues and help improve procedural efficiency. This proposal was submitted to both the President of the King’s Bench Division and the Senior President of the Tribunals. It is currently awaiting approval.
Sent out a questionnaire to stakeholders, which has raised a number of further issues for review, such as consistency in the application of the BSA across the Tribunals.

Panel 3: Thorny Contractual Topics

This panel tackled complex issues arising from standard construction contracts, focusing on limitation of liability and contractual notices. The panel included: Vincent Moran KC, Lucy Garrett KC, Sarah Williams, Yolanda Walker (DWF)

The panel examined liability caps in the context of claims for interest and costs and claims under the Defective Premises Act (“DPA”).

Interest and costs: The panel also examined the recent Court of Appeal decision in Topalsson v Rolls-Royce and a number of earlier decisions (such as Irwell and Equitix) in which it was consistently held that statutory claims for interest did not fall within a contractual liability cap because the entitlement to statutory interest did not flow from the contract, but rather the relevant statutory regime. The Court of Appeal in Rolls-Royce adopted this approach, but emphasised that this was because of the particular wording of the contract in question which would always be the key point at issue. The Court of Appeal did also refer to the causation point but also noted that its construction of the contract made commercial sense as it increased the incentive to pay on time. The panel commented that it is thought that legal costs will usually fall outside a liability cap (depending on the wording of the contract and the particular facts) because the costs are caused by the dispute rather than the underlying breach.

DPA: The interplay between contractual limitation clauses and the statutory duties imposed by the DPA was examined. Section 6 of the DPA renders void any term that seeks to exclude or restrict the operation of the Act or any liability arising from it. The case of Vainker v Marbank illustrated the court's unwillingness to allow net contribution clauses to limit DPA liability. In URS v BDW, it was argued that the designer didn’t owe duty under section 6 of the DPA because this would cut across his duties. This argument was also rejected. The discussion explored the nuances of how section 6 might apply in contribution claims between different parties owing a DPA duty to the same developer, with arguments suggesting it may not necessarily void limitations in such secondary contracts.

Contractual Notices under FIDIC: The panel underscored the critical importance of complying with contractual notice provisions. The rationale behind these provisions is to enable early investigation and mitigation of risks. The panel also revisited the contractor-friendly interpretation of FIDIC Clause 20.1 (20.2 in the 2017 edition), considering when the 28-day period for giving notice runs under the FIDIC form. The Panel discussed the contractor-friendly approach adopted by Akenhead J in Obrascon v Attorney General for Gibraltar, and a recent re-interpretation by the DIFC Court of Appeal decision in Panther v NESC, which took a different, less contractor-friendly view than that in Obrascon. Although, the Panel regarded the Panther decision as a misconstruction of Akenhead J’s judgment, the divergence raises questions about the future interpretation of FIDIC notice clauses, with a poll taken during the session to gauge expectations on how UK courts might approach this.

Key Takeaway: The interpretation of limitation of liability clauses in light of statutory duties and the strict adherence to contractual notice provisions, particularly under FIDIC, remain complex and fertile grounds for legal debate, with recent international case law potentially influencing future UK judgments.

Panel 4: The Building Safety Act

The fourth panel was chaired by Mrs Justice Jefford. The panel comprised, Jonathan Selby KC, Alexandra Bodnar, Charlie Thompson, and Harry Smith. This session addressed the Building Safety Act 2022 (“the Act”), exploring its implications and the practical experiences of practitioners (to date).

The key issues discussed concerned:

Remediation Contribution Orders (RCOs): The panel discussed the ongoing appeal in the Triathlon Homes case, in which Jonathan Selby KC represented the appellants, and Alexander Nissen KC acted for the respondent. The underlying dispute concerned an RCO application under s. 124 of the Act. A key point of interest is precisely what constitutes a point of law in appeals from the First Tier Tribunal and Upper Tribunal. There is a real debate on this issue. While it is clear that a decision can be challenged if the Tribunal erred in principle or took irrelevant matters into account, it is unclear whether this extends to questions of weight. Another key issue is the utility of the Act's explanatory notes. These notes only have secondary status in interpreting the statute and their only real role is providing context. Indeed, some aspects of the explanatory notes were actually regarded as wrong by the Court in BDW v Ardmore. Another issue noted was the retrospectivity of claims for RCOs, namely whether parties can claim in relation to costs incurred before the Act came into force. The appeals in Triathlon is expected to resolve some of these issues.
Remediation Orders (ROs): To date the Upper Tribunal has not provided authoritative guidance on Remediation Orders. This would be a welcome development given that FTT decisions are not binding. The panel noted that of the 13 reported FTT decisions on ROs, 12 were granted. In the single case where a RO was not granted, that was because it did not meet the prequalification criteria under the BSA. The Panel noted that where the pre-qualification criteria are met, it seems that the FTT, notwithstanding its discretion, will grant the RO, and that it will be a rare case where they decline to do so in the exercise of their discretion. The only type of case where this might happen is in cases where the defects will be remedied without an order or have been remedied by the time of the hearing. But these cases are unlikely to reach the FTT. Further, in the Vista Tower case, the Secretary of State successfully applied for an RO against a willing landlord as a “backstop” or “assurance” to the leaseholders, even though the landlord had already commenced the remediation of the defects.
Cladding Product claims under section 149 of the Act: On its face, this seems to be a very favourable cause of action. However, the panel noted that it creates a large number of hoops for an applicant to jump through, such as proving that a product is inherently defective, or that the product is the cause of unfitness for habitation of a building. The average leaseholder is highly unlikely to pursue a claim under this provision, and indeed, there have been no reported cases on this provision since it was introduced. The panel suggested that this could be because of the difficulty of making the claim, the infancy of the regime, or the likelihood of settlement due to the nature of leaseholder disputes.
Building Liability Orders (BLOs): Significant uncertainty remains regarding the timing and procedure for obtaining a BLO. Can a BLO be obtained early? Or does one have to go to Court to prove a relevant liability. On balance, the panel suggested that it might be possible to secure a BLO early, because such an order extends to “any liability”, which could be liability in principle, or a liability to be established further down the line. The cases to date have not given express guidance either way. The explanatory notes would support this, although as noted above, too much reliance cannot be placed on this resource. Ultimately, this may be a case specific matter. While decisions like BDW v Ardmore offer some guidance, the question of whether a BLO can be sought early, before establishing the primary wrongdoer's liability, is still debated.

Key Takeaway: The Building Safety Act continues to generate legal and practical complexities, with ongoing judicial interpretation needed on key provisions such as the scope of RCOs and the timing and procedure for BLOs. Understanding the nuances of the Act and its interaction with existing legislation is crucial for practitioners in this area.

Panel 5: Standard Forms UK and International Perspectives

This panel included: Paul Buckingham KC, Abdul Jinadu, Rachael O’Hagan, Jennie Wild, Neal Morris (Pinsent Masons). The panellists provided a comparative analysis of standard form contracts used in the UK and internationally.

Usage of FIDIC and JCT Forms in Africa and the Middle East: FIDIC forms, often heavily amended to be employer-friendly, are prevalent for large infrastructure projects in Africa, often at the insistence of international funding institutions. Domestic contracts may be based on older JCT forms. The NEC form is gaining popularity in some regions like South Africa. In the Middle East, FIDIC Red and Yellow Books (often 1999 editions) are commonly used but similarly heavily amended.
Usage of Standard Forms in Asia: Hong Kong and Singapore were singled out as the key jurisdictions for construction practice in Asia. There is a two-level split between domestic and international work in these jurisdictions. Where the work is international, the FIDIC form is most commonly used. The local markets also have a split between public and private work. Private sectors in both jurisdictions have their own standard forms which are typically based on the JCT 63’ form. Notably, both jurisdictions have seen a huge growth in the use of NEC contracts in the public sector.
Cost and Contractual Models of contract: The panel provided a refresher on various cost models (lump sum, remeasurement, reimbursable, target cost) and contractual models (which includes professional services, build only, design and build, EPC, EPCM), emphasizing the importance of selecting the appropriate model for each project. EPCM contracts are seeing a resurgence due to limitations in contractor capacity and employers seeking more control.
Amending Standard Forms (at your peril!): While amending a standard form is not inherently wrong (because contracts should be tailored to the particular case), the panel strongly cautioned against amending standard forms without a comprehensive understanding of the entire contract. It was highlighted that poorly considered additions can create inconsistencies and unintended consequences. For instance, with the FIDIC form, the DAB clauses are often the first to go as many parties wish to go straight to arbitration and save costs. However, the entire FIDIC form is based around the use of this tiered dispute resolution procedure. This often causes many problems. Any amendments to standard forms should therefore be narrow in scope and well-thought out.
UK vs. International Payment Provisions and Enforcement: A significant difference between the UK and most international jurisdictions is the absence of legislation akin to the HGCRA, which provides for prompt payment and statutory adjudication. The lack of a statutory payment framework and enforcement mechanism in many other jurisdictions neuters the effectiveness of DAB provisions in the FIDIC contract (for instance). The UK's established legal procedure for enforcing adjudicators' decisions was highlighted as a major advantage.
Future Trends: In Africa, the anticipated trends include a deepening of the professional pool leading to more confident use of newer standard forms and the eventual development of standard forms specifically drafted for the unique challenges and context of the African continent. Generally, the standard forms need to be updated to address environmental impacts and the use of AI. Some “add ons” have been published, but they do not comprehensively address the challenges, and do not readily fit with existing standard terms.

Key Takeaway: The choice and adaptation of standard form contracts require careful consideration of the specific project, jurisdictional context, and potential risks. While FIDIC dominates international infrastructure projects, local amendments are common. The UK's statutory framework for payment and adjudication provides a significant advantage compared to many other jurisdictions.

Conclusion

Simon Hughes KC and Piers Stansfield KC, editors of the 12^th edition of Keating on Construction Contracts, in their closing remarks, reflected on the significant evolution of construction law since the first edition in 1955, as well as the discussions throughout the day.

The Keating Chambers Construction Conference 2025 provided a comprehensive and insightful overview of the current landscape and future directions of construction law; highlighting the ongoing evolution of dispute resolution mechanisms, the complexities of interpreting standard contracts and new legislation like the Building Safety Act 2022, and the critical considerations for both domestic and international projects. The key takeaways from these sessions will undoubtedly inform the practice of construction law professionals as they navigate the challenges and opportunities ahead.

A copy of the full conference note is available here.