Construction Law and Dispute Resolution

Construction Law and Dispute Resolution.

The Adelphi Lads Club & Ragged School, Salford, originally opened its doors to the children of
Salford in 1888 with the aim of raising aspirations by directing their “energies into channels more
elevating than congregating in gangs on street corners”.
The old club situated at 49 Cannon Street, Salford (“the Site”), has now fallen into disrepair and
was due to be sold (with full planning permission for residential use) by public auction with a
Guide Price of £900,000 before being suddenly withdrawn from sale and sold privately.

The mystery purchaser is an entrepreneur (and former CLDR student of the University of Salford),
sole shareholder and CEO of a development company called Salgirl Limited (“the Employer”).
Salgirl entered into a contract with Ting Ting Construction Limited (“the Contractor”) on 03
February 2022 for the refurbishment of the former Adelphi Lads Club & Ragged School (“the
Works”) under a JCT Standard Building Contract With Quantities 2016 (“JCT SBC/Q 2016”) form
of contract (“the Contract”) to create a number of luxury residential shell spaces within the
extended old building which were to be sold off for profit.
Incorporated into the Contract Documents was a Refurbishment / Demolition Asbestos
Containing Material Survey (“Asbestos Survey”) which confirmed that whilst asbestos had been
identified in the existing derelict structure, following the stripping out of the asbestos by a
specialist asbestos removal contractor, Era Merewether Limited, all asbestos had been eliminated
and the Site was certified as being “fit for reoccupation”.
Included in the Contract Particulars was a Date for Completion of 27 May 2022 and included in
those particulars was the following statement relating to liquidated damages:
“…liquidated damages are £2,750 per day…”
On 25 February 2022 the mechanical & electrical subcontractor, Jamal, uncovered material in the
basement of the Site which appeared to be asbestos.
Ting Ting’s construction manager immediately suspended work in the affected areas of the Site
and requested an instruction from Weasley LLP (“the Contract Administrator”) who issued a
written instruction requiring Ting Ting to immediately arrange tests on the suspect material and
to then “…remove all asbestos containing material in order that the Works can be completed by
the Date for Completion…”
Era Merewether Limited returned to the Site and confirmed that the suspicious material
contained asbestos fibres and advised Ting Ting that, due to the location of the material, it would
be difficult to remove and that they would only be willing to carry out the safe removal of the
asbestos for Ting Ting on a dayworks basis.
Ting Ting gave notice to Weasley in accordance with the Contract requesting an extension of time
and payment of loss and expense.
By the time the remaining asbestos containing material has been removed a delay to the
Completion Date of 10 days had occurred.
At a subsequent site valuation the Contractor’s graduate quantity surveyor included an item
under the Variation section for the removal of the asbestos based upon daywork sheets signed
by the Clerk of Works.
The Quantity Surveyor rejected the valuation of the asbestos removal on the basis of dayworks
and referred to a clause contained in the Preliminaries section of the Contract Bills which states:
“…No work will be valued on a daywork basis unless written notice of the commencement of
daywork is given to the Contract Administrator…”

The Quantity Surveyor quite rightly points out that whilst proper notice in relation to extensions
of time and loss and expense were submitted by Ting Ting, no such notice relating to any dayworks
was given.
After completion of the Works Ting Ting receives a letter from Weasley responding to Ting Ting’s
request for an extension of time and loss and expense in relation to the asbestos issue which
stated.
“…I refer to your requests for an extension of time and loss and expense relating to the discovery
of asbestos. Whilst I am sympathetic to your predicament, I have been reminded by the
Employer’s commercial director that you should have been aware at the time of entering into the
Contract that, given the age of the building, there was always a likely to be more asbestos in the
basement. I am therefore instructed that you accepted the time and money risk associated with
this problem when you signed the Contract.
In the circumstances I have no alternative but to reject your requests for an extension of time and
loss and expense.
Accordingly, as the Works achieved practical completion 10 days after the Completion Date, I
regret to inform you that the Employer intends to deduct liquidated damages in the sum of
£27,500 from your final payment…”
Ting Ting has now discovered that Gladys Althorpe, the CEO of Salgirl, has taken over
responsibility for all Salgirl’s commercial affairs and instructed her team to apply to Salford City
Council for a change of use to the completed Works. Rather than sell the luxury residential shell
spaces, she has now opened the doors of the building to homeless people providing health,
education and free hot meals.
Task:
You are required to prepare a report of 2,500 words in length (the word count excludes the
list of references, list of cases, any bibliography and cover sheet) which provides advice to
Ting Ting in relation to the legal position with regard to the following:
a) Whether Ting Ting is entitled to be paid additional monies in respect of the removal of the
asbestos and, if so, what the basis of the valuation should be.
b) Whether, in principle, Ting Ting is entitled to an adjustment to the Completion Date and
to payment for loss and expense in respect of the discovery of asbestos.
c) Whether Weasley’s response to the request for an extension of time and loss and expense
is correct and appropriate.
d) Whether, in principle, Salgirl might be entitled to deduct liquidated damages of £27,500.
Sections (a) – (d) above carry equal weighting in the overall mark.

Your advice should be fully supported by reference to relevant provisions of JCT SBC/Q 2016
together with relevant caselaw and any authorities in statute which should all be cited and
referenced in accordance with the Harvard (APA 7
th) style of referencing.
Please also include separate lists of cases and / or statutes (if any) referred to in alphabetical
order.
Whilst every effort has been taken to make the technical aspects of the problem plausible, it is
possible that you may believe as a result of your own personal expertise and knowledge that the
given scenario is unrealistic. Such beliefs are irrelevant to this assignment and you must address
the scenario as set out above.
You need not consider the implications of the legislation relating to the control of asbestos and
/ or planning.
Assessed intended learning outcomes
On successful completion of this assessment, you will be able to:
Knowledge and Understanding In terms of exceeding the word count,
1. Demonstrate a theoretical and practical understanding of the reasons why disputes arise in
the construction industry and the various mechanisms for avoiding and resolving them.
2. Explain the various principles of substantive law which are relevant to disputes in the
construction industry.
3. Demonstrate an understanding of how these legal principles influence professional practice
within the industry.
4. Apply relevant principles of law to a range of problem scenarios and provide articulate and
logical solutions.
5. Critically evaluate the appropriateness of current professional practice in the context of
relevant legal rules and identify areas requiring reform.
Practical, Professional or Subject Specific Skills:
1. Dealing with a challenging real – life scenario that might manifest itself in industry
including collating various issues from technical, contractual, legal and factual
perspectives.
2. Providing reasoned advice in industry.
Module Aims
1. To introduce students to the nature and causes of disputes between contracting parties and
stakeholders in the construction industry and the various mechanisms for dispute avoidance
and resolution.
2. To further develop students’ knowledge of construction law and dispute resolution within an
industry context reflecting the commercial realities of the construction industry in the UK
and reflecting the international nature of construction.
3. To raise students’ commercial awareness and to consider risk management from a
commercial perspective.

Word count
Your assessment should be a maximum of 2,500 words which includes case names and extracts
from all sources. Every word from the start of the advice to the end of the advice counts
towards the word count. References and lists of cases are not included in the word count.
No Appendices to the report are permitted. In terms of the effect of exceeding the word count,
please see the Assessment Criteria relating to brevity, effectiveness and clarity of: writing style,
advice and structure. At this stage of their literacy development, the aim is for students to
decide for themselves the appropriate split of words between each section.