In the highly difficult climate that the construction industry finds itself in, workers find themselves open to potentially more disputes and claims than ever before. The way the industry must now adapt, and the newness of it all, will naturally result in some controversies.
Keeping Open or Closing a Site
One of the areas where we have seen some disputes is regarding the rules put into place by the government to help stop the spread of COVID-19. This is further complicated by staff shortages due to illness or those self-isolating, which has made it very challenging for the work to continue in a safe and timely manner.
The contractor has a statutory duty to manage health and safety during any ongoing work and it will normally be their decision to close a site or implement certain restrictions on health and safety grounds. Sometimes the contractor will liaise with the client’s health and safety advisor ‐‐ the principal designer – and this is where some disputes have arisen. In some cases, an architect, engineer or another professional has taken on the principal designer role and become involved in the decision of whether a site should be closed.
The disputes arise when the principal designer opens themselves up for criticism by taking swift action in closing the site, causing unplanned disruption and delay to the work. Having said that, the principal designer may also be criticised for keeping a site open when the continued health and safety of everyone working on the site is up for debate.
Another scenario ripe for claims is when consultants are unable to carry out their contractual obligations to meet a deadline or comply with a programme. Again, this could be due to staff shortages as well as delays in the planning process or other assorted issues. Any issues that have occurred due to the COVID-19 outbreak should be deemed outside of the consultant’s control, however, often a contract will be drawn up where a ‘no right to extension of time’ clause is put in place. There is also the potential for arguments to arise over who was responsible for the delay in a given scenario.
As a result of the above – and other factors – we can expect claims to arise because of a failure to warn clients of delays. There could also be claims based on consultants failing to keep their clients informed of the impact of COVID-19 on their services and the project itself. We can also expect to see a potentially large amount of cases revolving around increased costs for either party due to the mentioned delays.
There will come a point where it is decided by some professionals to halt their service completely without any agreement from the client and this could definitely lead to claims, especially if a risk assessment was not undertaken and it is decided that this could have been avoided if it had been.
Currently, there are a lot of chances for disputes and claims to arise within the construction industry as a result of the altered conditions that construction faces. Hopefully all of the involved parties will be able to resolve their disputes in a swift and fair way, and with as minimum cause for drawn out legal action as possible.