Description
CONSTRUCTION LAW PRINCIPLES
PRESENTATION ASSESSMENT
Presentation Instructions
You must prepare a response to all questions, but on the day of the presentation you will be required to present on just THREE questions. You will be able to select one question to present, but the assessor will inform you at the beginning of the presentation which two other questions you need to present. The presentation is marked out of 300 marks and contributes 40% to your final mark for the module.
Submission Date:
Your PowerPoint slide show must be submitted to Turnitin no later than 09:00 (British Time) hours on 22 April 2024. The file MUST be saved and named as your surname and student ID number before being uploaded (e.g., Dunn 77123456).
The presentations are to take place in the week commencing 22 April 2024. You are to allocate your own presentation slot by completing the ‘Presentation Timetable’ excel document at the top of the module homepage (which will be made available in due course). The presentations will take place between 08:30 and 17:30 UK time, but the earlier and later time slots will be reserved for those students located in markedly different time zones.
Delivery:
You are to deliver your presentation using Microsoft Teams during your allotted slot. The module tutor will issue a meeting link for the presentations in due course. You will need to ensure your microphone is working, and you will be required to have your camera turned on. You are also responsible for uploading your own presentation slides on Microsoft Teams, and sharing them during the presentation.
Timings:
You will have 21 MINUTES IN TOTAL in which to make your presentation on the three questions, and there will be a further 5 minutes at the end of your presentation reserved for questions by the module tutor.
Slides:
You are limited to a maximum of five slides per question, and you are advised to have a maximum of six bullet points per slide (and a maximum of 60 words per slide – not including the slide heading). You should include key clauses and key cases on the slide (case names can be abbreviated, for example ‘Cavendish v Makdessi’). There is no requirement for you to footnote case law/sources on the slide. Use the default blank template in PowerPoint. Do not waste words by repeating parts of the question – the assessor knows the question.
You must not simply read the slides, you need to provide a wider explanation of most points, and this needs to be fluent. You must not read from a pre-prepared script, this will prevent the presentation from being fluent.
You MUST consider the Assessment Criteria towards the end of this assignment brief.
PART A
Prestige Developments has decided to embark upon the construction of a student accommodation block in Leeds city centre. The accommodation block will be 20 storeys high and will house 260 students, complete with a bar and gymnasium located in the basement.The project was awarded, after a competitive tender, to ABC Contractors. The anticipated start date is 1st August 2020. The Date for Completion is 31st August 2022 in readiness for the new academic year.
The contract for the project is an amended JCT Standard Building Contract (with quantities) 2016. Clauses 3.7 to 3.9 have been removed. The Contract Particulars state that liquidated damages are “at a rate of £170,000 per week” and that the Rectification Period is “12 months”.
In September 2020, during the excavation phase of works, ABC Contractors discovered large boulders which had the effect of delaying the excavation works for a period of 3 weeks and resulted in additional project costs. These boulders did not feature in any of the documentation supplied by Prestige Developments. In February 2021, during the construction phase of works, heavy rainfall and strong winds caused additional delays of 2 weeks. These problems were further compounded by the requirement to relocate electricity cables which caused a further delay of 1 week while npower, the electricity utility company, relocated the services. Then in November 2021, ABC Contractors, without informing Prestige Developments, employed the services of an electrical contractor to undertake the installation of the electrical works. However, the tradesmen supplied by the electrical contractor were inexperienced and, as a result, the installations were defective. The necessary remedial works caused further delays and additional costs.
On 25th June 2022, Prestige Developments took partial possession of the bar and gymnasium (located in the basement), in addition to the student flats located on the first 4 levels, which in total equated to 25% of the project. In November 2022, with the project still incomplete, Prestige Developments began to levy the agreed liquidated damages sums as set out in the Contract Particulars. ABC Contractors informed Prestige Developments that the liquidated damages are “not a genuine pre-estimate of the loss and are therefore unenforceable”. Prestige Developments responded by stating that “the liquidated damages are commercially justified and are therefore enforceable – it is irrelevant whether or not they are a genuine pre-estimate of the loss”.
Platinum Developments has decided to embark on the construction of a hotel in the centre of York.The project is put out to tender and Cressington Contractors are the successful tenderers in the sum of £14.8M.The form of contract is the JCT Standard Building Contract (with Quantities) 2016.Cressington Contractors commenced Works on 1 September 2021, and the planned Date for Completion is 10 November 2023.
A redundant 5 storey office building in Leeds city centre is demolished and the cleared site is to be developed for high-quality housing.The demolition and new build project is let under the JCT Standard Building Contract (with Quantities) 2016. The Contract Sum is £9M and the contract period is 15 months. The employer is HC Group and the contractor is Pettit & Small Ltd. Pettit & Small Ltd commenced the Works on 30 November 2021.
A joint government and privately financed venture known as HR7 has commissioned the construction of a high-speed rail link between Leeds and Manchester under the NEC4 Contract Option A.Option W2 and Y(UK)2 apply.The Contract Sum is £62M. The assessment interval is ‘one calendar month’ (with the assessment date being the last day of the month). Phase one of the works, which comprised the design and construction of the track and associated earthworks, were awarded to Rapid Rail Ltd. Rapid Rail Ltd commenced construction on 1 March 2022 and are due to complete on 14 September 2025.
ABC Contractors seeks additional time and monies for the above-mentioned issues. However, the A/CA is refusing to consider extending the contract period or making any additional payments to ABC Contractors. Further, Prestige Developments seek to take-action against ABC Contractors for alleged unlawful sub-contracting of the works.
Identify the issues to be addressed and advise ABC Contractors accordingly. Reference must be made to relevant contractual provisions and case law.
[Please turn to the next page]
The project was finally handed over in January 2023. In July 2023, it became apparent that there was a defect in the soil pipes. Prestige Developments paid a third-party contractor to undertake remedial works and now seek to recover these costs from ABC Contractors.
Identify the issues to be addressed and advise ABC Contractors accordingly. Reference must be made to relevant case law and contractual provisions (including the required contractual notices and their relevance).
PART B
During month 5 of the project, Platinum Developments decided to upgrade the light fittings to a more premium (and more costly) option and the Architect issued an instruction for such upgrade to Cressington Contractors. Cressington Contractors does not want to implement the upgrade as it will necessitate additional work. At the same time, the Architect wrote to Cressington Contractors informing it that it is not required to undertake the fit-out of the reception (included in the original scope) as this is to be carried out by a third-party contractor and, as a result, payment in respect of this item will not be made.
Further, Cressington Contractors has been accidently copied into an email from Platinum Developments to the Architect in which Platinum Developments stated “…we’re having cashflow difficulties at the moment, do not certify any payments to Cressington Contractors over £10,000 in the next interim payment cycle…” Cressington Contractors is concerned by this and wants to understand whether: (a) Platinum Developments are able to issue such directions; and (b) whether the Architect has to adhere to those directions.
Identify the issues to be addressed and advise Cressington Contractors accordingly. Reference should be made to relevant contractual provisions and case law.
PART C
However, the consequences of the UK’s departure from the European Union continue and there has recently been a sharp decline in the UK’s available labour market. As a result, Pettit & Small Ltd is unable to provide sufficient labour for the project. Consequently, as of August 2022, the project is in considerable delay and behind programme. As the labour shortage is set to continue, and with the cost of labour rising, Pettit and Small Ltd want to bring the contract to an end in order to avoid a considerable increase in project costs. Pettit and Small Ltd believe they have a right to end the contract, and avoid liability for damages, given the difficulties created by Brexit.
HC Group, concerned with Pettit and Small Ltd.’s lack of progress with the Works, are now also seeking to terminate the contract and recover its losses associated with such termination from Pettit and Small Ltd.
Identify the issues to be addressed and advise both parties accordingly. Reference must be made to relevant contractual provisions and case law.
[Do NOT address Covid-19 in your answer]
PART D
On 23 September 2022, Rapid Rail Ltd submitted its application for payment for the amount of £163,000. HR7 failed to issue any notices and on 12 November 2022 payment had still not been made by HR7 which was having a considerable impact upon Rapid Rail Ltd.’s cashflow.
Comment upon Rapid Rail Ltd.’s entitlement to be paid the amount stated in its application for payment with reference to the relevant contractual provisions and legislation. Where appropriate, reference should be made to relevant case law.
In the event HR7 continue to fail to make payment, taking into account the information provided above, advise Rapid Rail on an appropriate (and well-reasoned) dispute resolution strategy.
Depth of analysis.
Accurate use of case law, statute law and precedents.
Accurate analysis and application of contractual clauses.
Advice tailored specifically to the facts of the scenario.
Evidence of further research.
ASSESSMENT CRITERIA
Marks will be awarded for demonstration within the submission of the following:
Identification, discussion, explanation and application of legal and contractual principles (relevance/clarity/accuracy/completeness)
This section will look in particular for:
70%
Fluency of delivery, clarity of oral explanation, ability to engage and demonstrate confidence in subject matter.
20%
Effective use of slides with appropriate, clear and purposeful information (and with accurate use of English).
10%
Better answers will:
Have been carefully proofread, word for word, and properly edited and formatted in accordance with the above instructions prior to submission.
Provide a correct and complete analysis of the tasks, applying case law and statute law as necessary to justify the argument.
Demonstrate evidence of wider reading and research beyond the immediate course material.
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PRESENTATION SUPPORT TUTORIAL
CONSTRUCTION
LAW PRINCIPLES
1
PRESENTATION OVERVIEW
A re-cap of the Presentation
Brief Instructions
2
CASE LAW & CONTRACT APPLICATION
• When relying upon case law, you have to actually APPLY it to the question:
• What was the decision held?
• Why is it relevant?
• How does the decision influence your advice?
• Don’t waste words discussing the facts of the case (unless they are on point/similar to the
scenario facts, and even then, they should be summarised and succinct) – focus should be
given to the decision and the application of such decision to the scenario.
• For example: “In the case of Pearce & High Ltd v Baxter, it was held that, in circumstances
where the employer failed to allow the contractor to rectify its own defects during the Defects
Liability Period, the employer will be unable to recover more than the amount which it would
have cost the contractor to remedy the defects itself. In application of this judgment, Party A
is advised that its recovery of damages will be limited to a maximum of £25,000…”
• If you are relying on a particular clause, say so! We are assessing your understanding of the
contract, so this is essential.
• Be specific with clause references, always cite the sub-clauses, sub-sub clauses etc. and
put the clause references on the slides.
3
ANSWER THE QUESTION
• Always ensure you are actually answering the question explicitly and DO NOT
REPEAT THE QUESTION!
• For example, when asked to “Identify the issues to be addressed and advise the
Contractor accordingly” make sure you actually provide ‘advice’, and it is useful to
summarise your advice for each issue.
• For example: ‘In summary, I advise the Contractor to comply/not comply with the
Variation instruction as it appears valid/invalid because… etc…”
• The scenarios are purposely vague – and you may not be able to answer the
questions conclusively, thus assumptions / alternative arguments may be
necessary.
• For example, “…provided the correct contractual notices were issued then…” / “in
the event Party X failed to issue the required certificate then…” / “Assuming the
obstructive physical ground conditions were not known to the contractor, then…”.
4
BE SPECIFIC
•
For each and every question, be as SPECIFIC as you can to the
scenario – this is how tops marks are obtained – you need to make
sure your answer is tailored to the scenario.
•
Make use of the specific information given and incorporate it into your
answer.
•
Remember, you are taking on the role of a lawyer – if you were
meeting with and advising a client, they would want that advice to
explicitly relate to their situation.
5
STRUCTURE
I suggest you succinctly identify the issues, then give your advice, for example:
• The issue: “The first issue concerns whether ABC are entitled to an extension
of time and additional sums due to the delays and expense caused by the
unforeseen ground conditions”
• NEXT: Consider the contract (i.e. are unforeseen ground conditions dealt
with, are they a Relevant Event, Relevant Matter?).
• THEN: Consider relevant case law (i.e. does case law help you determine
whether the unforeseen ground conditions are a contractor’s risk?)
• FINALLY: summarise your advice (i.e. it is unlikely that the contractor will be
entitled to an EOT or loss and expense due to the unforeseen ground
conditions)
You can follow this approach for most issues.
6
THE SLIDES
•
The slides are more of a prompt to help you to deliver your presentation and
allow the assessor to follow your arguments.
•
You will need to expand upon and further discuss the points made in your
slides.
•
It is useful to identify the names of the cases and relevant clauses you are
relying upon in your slides – you can then discuss and APPLY the
case/clause through your oral commentary.
•
Do not read word for word from a script, this will inhibit the fluency of your
presentation (for which there are marks available)
7
STUDENT QUESTIONS
During our presentation what weighting is given to the Question and Answers Section?
✓ There is no weighting, the questions are more an opportunity for you to clarify what has
been already said, or for you to address an omission in your answer.
Will questions focus on what we include in our sides or are the pre-set for each Part?
✓ There are no ‘pre-set’ questions. There will be no ‘curve balls’. For example, if you were
talking about the obligation to proceed R&D with the works (Q4), I may ask ‘What type of
evidence could be gathered in order to try and establish a failure to proceed R&D’. If
students get stuck on a Q, we will help them along. It isn’t anything to be concerned about.
Will the Questions concern the 3 parts we are presenting, or could they cover all 5?
✓ They will only concern the ones you are presenting on.
I’m struggling to search and find key case law to support my answers. Can you provide advice
on how to search for key case law please?
✓ You should start by using the lectures, there are a lot of relevant cases discussed in the
lectures. You should then consider the Resource Document. To find further cases, I would
then suggest using Lexis PSL (accessed via the library). It is a fantastic resource and really
easy to find relevant cases. For example, if you typed in ‘unforeseen ground conditions’ in
the search bar, you will get articles which link you to key cases.
8
STUDENT QUESTIONS
Is it appropriate to assume that reference to ‘partial possession’ of the site in the scenario
described is the legal position/description as opposed to a generic term and that on this basis
we do not need to consider the implications associated with ‘early use’ as a means for
employer access pre full completion?
✓ Yes, assume the partial possession reference is that contemplated by the partial possession
clause in the JCT. There is no need to discuss early use.
Where we are referencing clauses in the JCT contract… do we need to be specific in terms of
‘4.12.1’ etc or would we just state ‘under clause 4.12’ or similar?
✓ You MUST be as specific as possible.
One question I thought of later in the week was regarding the final element of the presentation
brief. Am I correct in assuming that question 5 relating to this part is a single question made up
of elements a and b.. i.e if this was one of the questions, we either chose to answer or were
asked to answer on the day then part a and b would need to be included? If so this would mean
there are 5 questions in total to prepare for which I think sounds about right from previous info?
✓ Yes, absolutely, question 5 is made up of both part (a) AND part (b). So, if you are asked to
present on question 5, you will be required to cover BOTH part (a) and (b).
9
STUDENT QUESTIONS
I’m just working through the final scenario on the presentation assessment. Looking at Clause
50.5, regarding payment, it makes a distinction between a contract that has a defined
programme and a programme that hasn’t been identified. For the example we are working on,
would you say the programme has been identified? I am thinking it has but wanted to check.
✓ Yes, you can assume that a programme has been identified.
Regarding Q5 part 1, should we use NEC4 as it is in the question or housing grants clause??
✓ Yes, use the NEC4 – note that the NEC4 complies with the payment provisions within the
HGCRA (you may want to point this out and say how it complies).
Are we expected to have a bibliography/reference section at the end of PowerPoint slides? I
assume this would not be necessary as we will have cases referenced in the slides anyway.
✓ No, not necessary.
How are we to reference the cases in the slides? Is there a particular way? or just plaintiff(s) vs
defendant(s) (year)?
✓ Just the case name and year is sufficient. You can shorten the case name if necessary, i.e.
you could state ‘Cavendish v Makdessi [2015]’ rather than including the full name (which
is ‘Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67’).
10
STUDENT QUESTIONS
You mention not reading from a script but are we able to consult our notes briefly in addition to the
PowerPoint slides?
✓ Yes. You are not prohibited from consulting notes, but you need to ensure that your presentation is
fluid and natural (as there are marks available for this, as to which see the assessment criteria).
Will there be a 7 minute per question rule? For example, I start on my chosen question then at minute
7 will be asked the next and so on?
✓ You have 21 minutes in total, and you can decide how you split that time. You will only be stopped
at the end of the 21 minutes.
I may wish to make “presenter notes” within the .ppt file, to provide more information/memory jogs for
me when I am talking through the slides, and for the Q&A – is this acceptable, or should I refrain?
✓ Yes, that’s absolutely fine.
Perhaps following the above, I may wish to have the JCT up on my other screen – perhaps to assist
with any specifics in the Q&A – is that acceptable? Though I appreciate it may not be conducive to the
format of the assessment, in which I think we’re aiming for a fluid and natural discussion, rather than
‘live search’ through contract clauses. Just wondering if this is/is not the done thing.
✓ You can have access to any documents you think may be helpful. However, the questions asked
will relate to the presentation you have given, and it is unlikely that you will be required to recall
specific clause references. If the assessor wants you to comment upon a clause, they will tell you
what the clause says.
11
STUDENT QUESTIONS
When I come to address the questions, should I consider you (or the assessor) as “the client” in every
circumstance and address the answer directly to you, or should I be talking about the client in the third
person?
✓ This is up to you, and whatever you feel is most natural. Personally, if I was presenting, I would feel
more comfortable talking about the client in the third person (i.e., “ABC is advised to…”)
Are abbreviations encouraged to be used on the slides and do they need to be defined in their first
use, e.g., Prestige Developments (“PD”), Liquidated Damages (“LD”)?
✓ Yes, that absolutely fine.
If it comes to my realisation after the submission of the slides that I have missed out a point (which is
worth for discussion) in the slides, can I add the point orally during the presentation day and will that
point be considered in the marking?
Yes, absolutely.
As I will be making a number of assumptions for certain questions, they will eat up the word/slide
count required in the brief. Are the assumptions required to be listed out on the slides, or can they be
spelt out orally during the presentation without being written on the slides?
✓ No – you can simply discuss/state the assumptions in your oral presentation.
On the presentation day, will the presentation be recorded on MS Teams?
✓ Yes, but the recording will be ‘private’ and only the assessors and the external examiner will be able
to view the recording.
12
THE BRIEF
A collective review of the
presentation questions
13
Construction Law Presentation
Task 2- Breckon Liability (1)
• HGCRA 1996: construction contract /
operation under sections 104 and 105
• Section 109(1)(a) – 45 day duration
• Entire contract and complete performance;
condition precedent for obligation
• Holland Hannen & Cubitts v Welsh Health
(1981)
Task 2 – Breckon Liability (2)
• Roman remains discovery amends work
duration beyond 45 days
• Interim payment due under section 109(1)(a)
• Antiquities and recommencement instruction
under JCT 3.15.2
• Relevant Event under JCT 2.26.4
Task 2 – Breckon Liability (3)
• Adverse weather conditions are relevant event
under JCT 2.26.8
• Extension of time entitlement and LAD’s
• Loss and expense for specific relevant events
under JCT 4.21.3
Task 2 – Breckon Liability (4)
• Arguably ‘Change’ by ‘limitation of working
hours’ under JCT 5.1.2.3
• Employers responsibility for antiquities and
subsequent prevention to piling SubContractor
• No EofT. Time at large, forfeit ability to levy
LAD’s
• Sub-Contractor obligation only to complete in
reasonable time
CLP Presentation
Questions
PART A – Question 1
Identify the issues to be addressed and advise ABC Contractors accordingly.
Reference must be made to relevant contractual provisions and case law.
Always start with the contract – Look at JCT Standard Building Contract (with
quantities) 2016 and the clauses referred to in the scenario.
What is a relevant event?
Work through the scenario, unforeseen ground Conditions, adverse weather
conditions, relocating power cables etc.
Who is responsible for each of the risks?
PART A – Question 1 (continued)
What is the contractor entitled to – anything? Extra time, Extra money?
Apply relevant case law.
Are there any other factors to consider?
Summarise! ‘In summary, I advise that ABC Contractors are entitled
‘ATQ’ – answer the question – relate it to the scenario, do not write
everything you know about the topic!
to…….because… etc.”
PART A – Question 2
Identify the issues to be addressed and advise ABC Contractors accordingly.
Reference must be made to relevant case law and contractual provisions
(including the required contractual notices and their relevance).
Discuss partial possession.
What notices should be given?
Discuss liquidated damages and the enforceability of the same.
Remedial works – look at clause 2.38 and discuss the implications.
PART B – Question 3
Identify the issues to be addressed and advise Cressington Contractors
accordingly. Reference should be made to relevant contractual provisions and
case law.
What constitutes a variation?
Validity of instruction?
Consequences for non-compliance.
Can work be issued to another contractor!
PART B – Question 3 (continued)
Responsibilities of the certifier.
What about the email?
Are there any other factors to consider?
Apply relevant case law.
ATQ – answer the question!
PART C – Question 4
Identify the issues to be addressed and advise both parties
accordingly. Reference must be made to relevant contractual
provisions and case law.
[Do NOT address Covid-19 in your answer]
Consider the doctrine of frustration.
Is there a breach of contract?
Consider the termination clause and procedures.
PART C – Question 4 (continued)
Are there any other factors to consider?
Apply relevant case law.
PART D – Question 5
a.
Comment upon Rapid Rail Ltd.’s entitlement to be paid the amount stated in
its application for payment with reference to the relevant contractual
provisions and legislation. Where appropriate, reference should be made to
relevant case law.
b.
In the event HR7 continue to fail to make payment, taking into account the
information provided above, advise Rapid Rail on an appropriate (and wellreasoned) dispute resolution strategy.
PART D – Question 5 (continued)
What is a construction contract? HGCRA 1996!
Discuss the interim payment procedure of the NEC4.
What dispute resolution methods would be available?
Are there any other factors to consider?
Apply relevant case law.
Finally
This is not an exhaustive list – you may well find many other issues to
consider and discuss.
So consider if there are any other factors to discuss?
Always apply relevant case law (where applicable).
ATQ – answer the question – link your answer to the scenario!
Advise the correct party!
Good luck!
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