18th November Journal Column

HK Logo - smallBy Jan Rzedzian, Associate Solicitor, Hay & Kilner

Contractors, employers, construction professionals and solicitors should all be familiar with the 16-year-old Pre-Action Protocol for Construction and Engineering Disputes. The protocol sets standards which the parties to a dispute are expected to observe before court proceedings are issued – the idea behind it being to save time and money by avoiding litigation. It applies to all construction and engineering disputes, including professional negligence claims against architects, engineers and quantity surveyors. So far it seems to be working as, according to the Technology and Construction Solicitors Association, it’s succeeded in 40 per cent of cases.

However, as with everything, it hasn’t been without its problems. Judges and barristers feared that it impeded cash flow, front loaded costs, prolonged the process of dispute resolution and hindered access to justice – basically, it’s done exactly what the industry has been trying to avoid since the Construction Act 1996 came into force.

Following a review by a Technology and Construction Court working party, a revised Protocol was introduced and came into force last week (9 November 2016).
So, what’s changed?
• More concise: The general aim has been modified ¬¬so now only an outline of the case needs to be given. The letter of claim and response should now only contain a brief and balanced summary of the party’s position meaning it should take up even less time.
• Fairer settlement costs: There is now an aim to settle disputes inexpensively, to go along with the original Protocol aims of settling disputes fairly and quickly.
• Voluntary meeting: A meeting is now optional, and may take the form of mediation.
• Timeframes are tighter: Parties now meet within 21 days after the letter of response and a maximum extension for any step of the process is now 28 days.
• Automatic conclusion: Protocol action will be concluded automatically after the meeting, or 14 days after expiry of the period within which it should have taken place.
• Non-compliance penalty changes: Only in exceptional circumstances will the court impose cost consequences for non-compliance.
• Referee procedure: A new consensual referee system has been added, with the intention of enabling directions to be given by a qualified third party during the procedure. As the intended application fee for appointment of a referee is currently £3,500 plus VAT, it is expected that it will only be used in the highest value and most technical cases, where parties wish to ensure compliance with the Protocol and avoid the likelihood of judicial sanctions.
• Although the Protocol is not voluntary, parties can also opt out of using the Protocol altogether, providing they all consent to this.
The new Protocol is designed to be less onerous and less costly but has it relaxed matters too far? If courts are going to be reluctant to impose sanctions such as cost consequences for non-compliance, this may encourage parties to run that risk and we could find ourselves back in the “bad old days” of seven day letters before action.

11th November Journal Column

By Victoria S Beattie, Director of Construction, Gateshead Council

One of my least favourite topics, the gender pay gap, has reared its head in the news once again this week, but for once, it’s not all doom and gloom.

Statistics from the Annual Survey of Hours and Earnings, published by the Office of National Statistics (ONS), show that the pay gap between men and women in construction is now 1.8 per cent below the national average – hooray!

The industry has long been known as a ‘man’s industry’ and it’s been great to see it dramatically change its stance on women in recent years. We’re certainly making more improvements than other industries, but a 16.3 per cent gap, for me, is still 16.3 per cent too much
I’ve personally found that attitudes towards women in construction have changed massively and are more positive than ever before. In the 20 years that I’ve worked in construction a lot has changed, things might not be perfect, but they are certainly better than they used to be.

From next April, the Government will start action to tackle the gender pay gap by requiring all employers with more than 250 employees to publish their gender pay and gender bonus gaps. This will produce more accurate figures, so this time next year we’ll have a much clearer picture of where we’re at, and how we can start to reduce that pay gap even further.

We need to keep working to ensure the industry is seen as an attractive career choice for young girls. Research carried out by YouGov, on behalf of the Royal Institution of Chartered Surveyors (RICS), asked young women aged between 13 and 22 about their perceptions of gender equality in the workplace. The results showed that 29 per cent thought property and construction sectors were only for men, voting them the least female-friendly industry. What’s even more shocking is that 41 per cent of respondents believed being a woman would hold them back in any workplace – something I couldn’t disagree more with; nobody should be held back just because of their gender.

We need to show the world that women can be just as successful as men, particularly when it comes to inspiring the next generation of young women that there is a world of possibilities ahead of them. Of those that took part in the YouGov survey, 43 per cent said having a female Prime Minister or President would help gender diversity at work. We’re still in the early stages of having a female Prime Minister again but Theresa May is proof to young women that they really can achieve anything. Look at Angela Merkel, she was Germany’s first woman Chancellor and is the longest-serving current head of government in the European Union. Earlier this year, Merkel was named the most powerful woman in the world by Forbes for the tenth time – if that doesn’t show young women that gender doesn’t hold you back then I don’t know what does!

4th November Journal Column

By Catriona Lingwood, Chief Executive of Constructing Excellence in the North East

Since April, when the Level 2 mandate came into play, the industry has seen far more engagement towards Building Information Modelling (BIM). People are finally accepting BIM and seeing the potential benefits that the digital world can bring to construction. For a long time, construction was one of the least automated industries around, but thanks to the likes of BIM and virtual and augmented reality, we’re slowly but surely catching up.
The building site of the future is going to look very different to what we are all used to seeing today. Virtual reality (VR) is all about the creation of a virtual world that users can interact with. Building a construction project in a virtual environment means you can experience how the final building will function and appear, using technology to make changes to locations of partitions or walls, meaning factors can be tested without the time and cost of building the structure, reducing the number of problems that may occur in the process.

We’ve been using computerised 3D models of buildings for a while now, but now London based engineers, Elliott Wood are trialling a 360-degree visualisation cylinder igloo in its office. Contractors can feel what it’s like to be right in the middle of a site by wearing VR headsets, allowing them to see a full 360-degree view. Anyone wearing the same headset will also be able to see the same thing, allowing changes to be made straight away to designs anywhere around the world – something we would have never predicted only a couple of years ago.

Augmented reality (AR) on the other hand is the blending of virtual reality and real-life, as developers can create images within applications and users can interact with virtual contents in the real world. By overlaying virtual data and images on to a current physical space, potential flaws that may arise can be spotted early and workers can take measures to avoid them.
Using AR to showcase a building to potential investors in its proposed real-world location will help them understand how it will connect with its surroundings. It makes it easier for planners to work with contractors and can also reassure clients, making it easier for everyone to work together and ensure the project runs smoothly.

VR and AR are expected to have a major impact on the building sector over the next few years, with investments already being made for developing new technology. I know some people are apprehensive of change, we’re creatures of habit and for those that have worked in the industry for a long-time using new technology is a scary, but the likes of VR and AR are only going to help the industry in many ways – shorter project delivery times, safer construction sites and overall improved quality of projects? Yes, please!