Archive 2016 10

Products & Services To advertise in the Products & Services section contact the Builder sales team on 0161 236 2782 AGGREGATE INDUSTRIES TO INTRODUCE NEW SAFER & EFFICIENT VEHICLE FLEET THANKS TO INVESTMENT BY EDDIE STOBART Customers of leading building materials supplier to the construction and infrastructure industry Aggregate Industries, are set to benefit from a new fleet of safer and more technologically advanced mechanical offload (MOL) trailers and EN-XL curtainsiders, as part of its new logistics partnership with Eddie Stobart. Eddie Stobart has just taken delivery of the innovative fleet, ahead of commencing a new contract with the Concrete Products division of Aggregate Industries. The new vehicles will help to ensure greater flexibility when off-loading on site, making the process more efficient and, importantly, safer for drivers who will be able to adapt how they offload to each location. The innovative new MOL trailers feature the Atlas 92.2–A1 roller demountable crane, operated from the vehicle or the ground, which gives operators the ability to select the most efficient and safe offload option. Fitted with a positive rear steer and front axle lift; the combination ensures maximum carrying capacity and on-site manoeuvrability. More information is available on 221887-10-16 B&E BOC 10L P&S (90mm wide x 48mm high) GASES AND PRODUCT SOLUTIONS TO HELP GET YOUR PROJECT BUILT BOC’s Genie® gas cylinder is lightweight and easy to carry around but also gives the option of attachable wheels. It has an interactive display, indicating gas levels with a built in alarm, so no more running out mid job. The Genie’s rugged design means it’s perfect for on-site use. BOC also provides a full range of welding, cutting and cryogenic solutions to meet your productivity, quality and cost targets. Products and services include: • All-in-one welding solutions • Customised cutting and pre-heating • Special gases for installations • PPE and workwear Find out more about BOC’s innovative Genie® gas cylinder on the Builder and Engineer website, 221887-10-16 B&E BOC.indd 1 04/10/2016 09:54 www.builderandengineer.36 Settlement Agreements and Adjudication Disputes are a fact of everyday life in the construction industry. Parties can manage to fall out over anything from the value of a particular variation to the quality of completed work or the value of an interim valuation and so the list goes on and on. More often than not, these disputes are agreed as the work proceeds and these agreements may be recorded by a handshake, an exchange of emails or letters or even by the drawing up of a formal settlement agreement. All this is well and good until one party decides that it no longer wishes to be bound by the settlement agreement reached. So where does this leave you and, more importantly, can you rely on your statutory right to have the ensuing dispute decided by an adjudicator if the gloves have to come off? The answer to this question is ‘probably’, but, as with all things in life, the answer is a little complicated and will depend on a number of factors. These factors include the circumstances under which the agreement is reached, the terms of the agreement itself and the express terms of the adjudication provision in the underlying contract. Looking at these factors in more detail, ask yourself if the settlement agreement is intended to vary any of the terms of the underlying construction contract, is it intended to replace the underlying contract or is it simply a statement of what is actually provided by the terms of the underlying contract? For example, the parties may agree that the value of a particular variation is £100 and this could be simply a recognition of an entitlement that exists by virtue of express terms set down in the underlying contract, permitting the instruction of a variation, and other terms defining how the variation is to be valued. Clearly, the settlement agreement in this example does not set out to replace the underlying contract, it simply reflects an existing entitlement. If the agreement breaks down, then an adjudication can follow under the underlying construction contract. But what if the agreement is a far more complex settlement agreement, covers a wide range of issues and clearly states that it is intended to cancel and replace the underlying construction contract? Such a settlement agreement may not be classed as a construction contract in its own right and thus no statutory right to adjudication then exists. The adjudication provisions set down in the original construction contract might come to your rescue, but then again it all depends on what the provisions actually say. A contractual adjudication provision may restrict you to only adjudicating “disputes arising under the contract” or it may say “disputes arising under and in connection with the contract” or it may even say “disputes arising under, out of or in connection with the contract”. A dispute that arises from a replacement contract, even if it is not classed as a construction contract, would still be caught by the second and third examples but arguably not the first. To complicate things further, what if an allegation of misrepresentation is made in connection with the replacement contract which it alleged goes to the root of the agreement, could this be adjudicated? The answer would, in the first example, appear to be ‘no’, in the second ‘possibly’ and in the third example ‘more than likely’. Clearly, any doubt regarding the right to adjudicate under a settlement agreement can quickly be removed by including an express provision specifically catering for the adjudication of disputes but it is amazing how these things can get missed in the rush to document an agreement. In preparing this article I have reviewed a number of judgements which include Shepherd Construction Ltd v Mecright Ltd 2000, Quarmby Construction Co Ltd v Larraby Land Ltd 2003, L Brown & Sons Ltd v Crosby Homes (North West) Ltd 2005 and J Murphy & Sons Ltd v W Maher and Sons Ltd 2016. In doing so I have come to the conclusion that it is a difficult area of construction law which continues to develop. Whilst it does appear that the Courts are increasingly leaning towards allowing adjudication in settlement agreements and more cases are sure to follow, there can be no substitute for drafting carefully worded settlement agreements that clearly spell out that a right to adjudicate exists if that is what you intend. Peter Vinden is a practising Arbitrator, Adjudicator, Mediator and Expert. He is Managing Director of The Vinden Partnership and can be contacted by email at [email protected] For similar articles please visit North of England, Wales & Scotland – T: 01204 362888 F: 01204 362808 Midlands & East Anglia – T: 0115 947 5334 F: 0115 947 5335 London & South of England – T: 0207 065 7060 F: 0207 194 7501 218878-10-16 B&E TVP.indd 1 30/09/2016 09:25 LEICESTER CHAMPIONS DISABILITY ACCESS A citywide programme to make Leicester accessible to all visitors has taken a major step forward with the opening of a state-of-the-art Changing Places toilet at the new Haymarket Bus Station. The £13.5million regeneration of the city’s main bus station has creating a modern, comfortable environment with an attractive concourse building replacing the collection of 1990s bus shelters that previously stood on the site. Among the key features of the new building is the new Changing Places toilet, supplied and fitted by Clos-o-Mat. The new Changing Places toilet at the bus station is wheelchair accessible and offers a height-adjustable adult-sized changing bench, a celling track hoist, and plenty of space for carers. This latest facility brings the number of Changing Places toilets in Leicester / Leicestershire to 20. Kay Wyeth, Changing Places project lead at Leicester City Council, said: “The city council is making significant investment in the regeneration of Leicester, and the Changing places programme is a key part of that. For further information; e:[email protected] OPTMISE USE OF SPACE TO ATTRACT CUSTOM Making better use of existing toilet space could help grow the customer base. Research shows that 20% of the average business’ customers are disabled- people who spend £80billion a year. For many of 5million people with special needs, they can’t spend that money where they want because they can’t go to the toilet whilst at that restaurant, coffee shop, cinema, department store, shopping centre, supermarket. Yet many wheelchair-accessible toilets in those locations already have the space needed (7.5m2), and only require the addition of a couple of fixtures. “Hundreds of thousands of adults and children with disabilities need a carer to help them with their toilet requirements, and often also need equipment- a changing bench and hoist,” explains campaigner Samantha Buck. “Even in my local town, I have been surprised to realise how many wheelchairaccessible toilets already have that space. We just need them to also have a bench and hoist added: the changing bench is less than 2m long, and a ceiling track hoist takes up no space at all! For further information; e: [email protected]

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