COVID-19 UK: Claims Against Construction Professionals ' Foreseeability Of Loss

• Published date: 12 June 2020
• Author: Jonathan Brown
• Subject Matter: Corporate/Commercial Law, Real Estate and Construction, Coronavirus (COVID-19), Contracts and Commercial Law, Construction & Planning, Litigation, Contracts and Force Majeure
• Law Firm: Clyde & Co

This article looks at ways in which remedial works arising out of construction projects could be impacted by COVID-19 and who might be responsible for bearing added losses arising from such works.

Whilst the Government has not ordered construction sites to close, and industry leaders have encouraged co-operation and fair dealing between parties on existing construction projects, there remains a high level of disruption and interruption to many construction projects from the virus. This ranges from a shortage of labour, plant, equipment and material and social distancing guidelines, making work harder, to a complete closure of some construction sites.

On a practical level, remedial works to existing defective construction works are likely to be affected in just the same way as work on current projects. How the remedial works are being paid for, and by whom the works are carried out, will of course vary from case to case.

One type of remedial work impacted by COVID-19 is Aluminium Composite Material (ACM) re-cladding work. Post lockdown, the Ministry of Housing, Communities and Local Government has emphasised that re-cladding work is "critical to public safety" and should continue where it is safe to do so. In April, the Housing Secretary and metropolitan mayors issued a joint statement insisting that replacement of flammable cladding remains a priority.

However, ACM re-cladding works which were underway before the COVID-19 'lockdown' have, in some cases, been paused, whilst other re-cladding works, which were due to be commenced during this period have, at least for the time being, now failed to get off the ground.

Costs arising from the impact of COVID-19 on remedial works will be wide-ranging but could include: higher loss of rent to employers, or building owners, if tenants have been moved out the property whilst the remedial works are underway and the remedial works will now take longer; and the cost of new materials and equipment introduced to ensure the works can be carried on safely.

The impact of COVID-19 on live construction projects, and who might bear the resulting costs, will, to a large extent, be dictated by the terms of the contract documents. But the impact of COVID-19 on remedial works, where there is a pre-existing breach of contract and / or breach of duty of care by the contractor, or other construction professional, will require an altogether different analysis relating to causation, to determine where the additional losses arising out...