Publications archive

David McArdle & Jon Quirk

We regularly receive requests from third parties for copies of a professional’s file. These requests are often “fishing expeditions”, as a potential claimant seeks to build a claim against professional or the professional’s client. Resisting such requests, where reasonable to do so, is usually the right tactic. Whilst requests for disclosure of an accountant’s file, for example, may be vulnerable to a Court order requiring disclosure, a legal professional’s file is different. The Court of Appeal has reaffirmed that a legal professional has a duty to assert privilege over their client’s documents and solicitors are entitled to resist disclosure of those documents unless there is an express waiver of that privilege (or the Court concludes that the legal advice was given for the purposes of furthering a criminal act).

Here David McArdle and Jon Quirk discuss the case in more details and provide some practical implications to be considered when acting for legal professionals and their insurers.

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Sheena Sood and Andrew Croft

In British Overseas Bank Nominees Limited v Stewart Milne Group Limited [2019] CSIH 47 the Scottish Inner House overturned the Outer House’s original ruling and held that the limitation period under an underlying contract also applied to a collateral warranty. This brings the Scottish approach in line with that adopted by the English courts in the earlier case of Swansea Stadium Management Company Ltd v City & County of Swansea and another [2018] EWHC 2192 (TCC) which held that the limitation period ran from the date of the original building contract, thus giving clarity and certainty as to the scope of the contractor’s liability.

This case will allay any concerns that may have arisen following the first instance decision for those providing collateral warranties. In our article Sheena Sood and Andrew Croft provide further detail on the facts and finding of the case and their own commentary.

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Ian Masser & Jason Bird

The Ministry of Housing, Communities and Local Government (“MHCLG”) recently published a consultation document outlining the Government’s proposals to reduce the trigger height at which sprinklers would be required in new high-rise apartment buildings in England. This follows an initial call for evidence as part of a broader technical review of Approved Document B of the Building Regulations (which closed in March 2019).

The publication sets out proposals in relation to four issues: 1) trigger height options; 2) design for sprinkler provision; 3) wayfinding signage for fire and rescue services; and 4) evacuation alert systems. The construction industry responses to the issues were:

1. Trigger height options

The majority of respondents in the initial call for evidence considered that the current trigger height of 30 metres for sprinklers is set too high.

The Government therefore intends to reduce the trigger height to 18 metres on new high-rise apartment buildings; a reduction consistent with the ban on combustible materials in external walls and the proposed scope of the building safety regime.

The Government does not intend, at this stage, to provide for additional sprinkler requirements for other types of buildings. The consultation does not cover retrofitting sprinklers in existing buildings – the Government recognises such a step may not be simple, and therefore a more bespoke approach is necessary for those buildings.

2. Design for sprinkler provision

The current applicable guidance for sprinkler system design is BS 9251, as referred to in Approved Document B. The Government proposes that any change in height threshold will not change the applicable guidance and Approved Document B, and by extension BS 9251, will continue to set out the design parameters and requirements for sprinkler design.

The Government maintains that sprinklers will not extend to provide fire suppression to stairs, corridors or landings and, as such, it does not propose to change the approach in Approved Document B.

3. Wayfinding signage for fire and rescue services

The Government considers that there are simple changes to wayfinding signage that could be made which would have immediate benefits to firefighter safety. Respondents considered that meaningful changes to technical guidance should improve the consistency of approach in providing wayfinding signage to ensure firefighters do not face problems identifying floors. The Respondents identified a number of low-cost options which would improve to the overall safety of the building.

4. Evacuation alert systems

Respondents expressed interest in the provision of an emergency evacuation alert system that would provide fire and rescue services with an option to initiate a change in evacuation strategy via an alarm. Concerns raised highlighted that this system could cause hazards to residents and fire and rescue services during the early stages of an evacuation. Noted concerns included the risk of overcrowding in stairways and compromising ventilation systems which are designed to account for a single door opening into the stairway.

The consultation will run for 12 weeks and the Government is inviting construction professionals to submit responses by 28 November 2019. Respondents are encouraged to respond by completing an online survey by clicking this link. Alternatively, respondents can email or write to the MHCLG with their responses. For more guidance on how to respond to the questions in the consultation, see the Government website by clicking this link.

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James Hutchinson

The Cabinet Office has published Procurement Policy Note 04/19 (PPN 04/19), which sets out how the payment approaches of bidders can be taken into account in the procurement of major government contracts.

The PPN applies to all central government departments, their executive agencies and non-departmental public bodies when procuring contracts for goods, services or works valued above £5 million per annum under the Public Contracts Regulations 2015. The £5m per annum figure is based on advertised contract value, averaged over the life of the contract. For example, a contract with a four year term with a total contract value of £21m would be in scope, even if the value in the first year was under £5m.

A guidance note accompanies the PPN and sets out the assessment methodology for contracting authorities to use to check that a bidder has effective payment systems in place. It explains when it would be appropriate to exclude bidders that cannot demonstrate they have effective systems.

The PPN is another attempt by the Government to encourage bidders for public contracts to comply with its Prompt Payment Code. Bidders should review the PPN and guidance to ensure they can demonstrate compliance and avoid unnecessary exclusion.

A copy of the PPN and accompanying guidance note is available at:

If you have any queries on this PPN, or on public procurement generally, please do not hesitate to contact James Hutchinson at or at +44 (0) 20 7469 0408.

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Sheena Sood & Will Buckby

In the current political climate and with a no-deal Brexit looming, it is essential that all professionals give careful thought to the implications of a no deal Brexit on their business position.

In this article, Sheena Sood and Will Buckby explain how businesses will be affected and consider, in particular, the extent to which a no deal Brexit might affect ability to perform existing contracts and/or increase costs.

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Nadia Paliwall and Claire Miller

On 17 September, the Abu Dhabi Global Market Arbitration Centre (ADGMAC) published a set of Arbitration Guidelines. The Guidelines aim to provide all participants in an arbitration dispute with a set of best practice procedures to ultimately provide greater certainty and efficiency to the arbitral process.

In this article, Nadia Paliwalla and Claire Miller, provide an outline of the Guidelines and comment on some of the key points addressed.

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Joanna Lewis and Priya Thakrar

It has recently been reported that the Lacrosse Tower decision will be appealed to Victoria’s Supreme Court of Appeal. This appeal will be noteworthy to professional consultants and their professional indemnity insurers in Australia and more widely.

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Giles Tagg and Jon Quirk

NUA Facades Limited, Nua Interiors Limited and Silk Property Developments Limited v Terry Brady T/A Terry Brady Developments Limited.

This recent case has not received a great deal of attention. However, it should be of interest to contractors, project managers and employers. It reaffirms the difficulties parties face when seeking to set aside agreements, even where the court has evidence of impropriety before it. This is particularly in circumstances where the terms of the agreement are clear and the parties have had the benefit of professional advice. Although fact specific, the judgment is an interesting reminder of the difficulties parties will face in seeking to undo agreements on the basis of fraud.

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