Introduction

For the first time since 2020, the highly anticipated Annual Construction Law Update was held in person on 31 January 2023. It was a full house with 174 people in attendance and it was heartening to see the warm smile on everyone’s faces as we gathered with friends old and new within our community – post pandemic networking is definitely back with a vengeance.

The Event

The SCL(S) Annual Construction Law Update is a perennial highlight for all construction practitioners as it allows us to stay updated with the latest legal developments. The session was led by our SCL(S) Chair, Ms Moon Kua (Associate Director, Driver Trett), who extended warm lunar new year greetings to all in attendance and introduced the two eminent speakers – Mr Edwin Lee (Senior Accredited Specialist (Building & Construction), Partner, Eldan Law LLP) and Mr Daniel Waldek (Partner, Herbert Smith Freehills LLP). 

Singapore law updates

Mr Edwin Lee kicked off with the recent developments in Singapore and covered 5 topics:

1. Variations – A Gentleman’s Word is his Bond?
   • Vim Engineering Ltd v Deluge Fire Protection (SEA) Pte Ltd [2023] SGHC(A) 2
2. LDs – Do they still run after termination?
   • Diamond Glass Enterprise v Zhong Kai Construction Co Pte Ltd [2022] SGHC(A) 44
3. Retention sums – should they be released after termination?
   • ICOP Construction v Tiong Seng Civil Engineering [2022] SGHC 257
4. Concurrent delays
   • ICOP Construction v Tiong Seng Civil Engineering [2022] SGHC 275; Ser Kim Koi v GTMS Construction [2022] SGHC(A) 34
5. Other highlights include: (i) what constitutes Force Majeure; (ii) differences between Completion Certificate, TOP and CSC; (iii) standard of care and skill expected of Architects (all discussed in Ser Kim Koi v GTMS Construction [2022] SGHC(A) 34)

English law updates

Mr Daniel Waldek gave us an update on the latest cases from the UK, covering 8 topics:

1. LD Clauses
   • Buckingham Group Contracting Ltd v Peel L&P Investments and Property Ltd [2022] EWHC 1842 (TCC)
2. Force Majeure and termination
   • Optimares S.p.A v Qatar Airways Group Q.C.S.C. [2022] EWHC 2461 (Comm)
3. Concurrent delay and expert analysis
   • Thomas Barnes & Sons PLC (In Administration) v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC)
4. Defective cladding and building/fire safety
   • Martlet Homes Limited v Mulalley & Co. Limited [2022] EWHC 1813 (TCC)
5. Assessment of damages for loss of profits/overheads
   • Mallino Development Limited v Essex Demolition Contractors Limited [2022] EWHC 1418 (TCC)
6. Scope of reliance-based damages
   • Havila Kystruten A.S. v Abarca Companhia de Seguros S.A. [2022] EWHC 3196 (Comm)
7. Relational contracts and good faith
   • Perrucci v Orlean Invest Holding Limited [2022] EWHC 2038 (Comm)
8. ‘No loss’/remoteness of loss under collateral warranties
   • Orchard Plaza Management Co Ltd v Belfour Beatty Regional Construction Ltd [2022] EWHC 1490 (TCC)

Closing remarks

There were common threads in the development of jurisprudence in both jurisdictions:

• For instance, the Singapore court in Diamond Glass Enterprise v Zhong Kai Construction Co Pte Ltd [2022] SGHC(A) 44 followed the English law position in Triple Point Technology v PTT [2021] UKSC in finding that LDs are generally only applicable up to the termination of the contract, unless there are special conditions to the contrary.
• In Ser Kim Koi v GTMS Construction [2022] SGHC(A) 34, the Singapore court accepted the English court’s definition of concurrent delays in Adyard Aby Dhabi v SD Marine Services [2011] EWHC 848 as “a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency”. The Singapore court also accepted the proposition in Keating (10^th Ed) that even if a contractor is in culpably delay, if during that same period there is an employer-caused delay, the contractor is still entitled to an extension of time. This proposition was similarly applied in Thomas Barnes & Sons PLC (In Administration) v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC).

There were plenty of other interesting takeaways shared by both speakers and the talk was followed by a lively Q&A session moderated by Ms Moon Kua. The attendees then gathered for dinner and drinks in what was the first major get together in the construction law calendar. This year’s Annual Construction Law Update did not disappoint. 

Click HERE to view more seminar photos. 

Contributed by:

Mark Lee - Associate, Hogan Lovells Lee & Lee