Changes at MPG

We’re delighted to announce that due to expansion, our Watford office has moved to a new location. We’re also proud to have achieved RICS regulated status, and we have updated our company name to reflect this.

Our new address in Watford is 42-44 Clarendon Road, Watford WD17 1JJ. Please note we also have a new Watford telephone number. Telephone: 01923 312306. We’ve moved to make room for our growing dispute resolution team.

Please update your records with our new Watford details. You can find all our contact details across the UK and worldwide here: Contact

Having achieved RICS regulated status, we’ve changed our company name to more accurately reflect the business in 2019. We’re now MPG Chartered Surveyors Ltd.

Regulated by RICS designation shows that MPG:

  • practises to globally recognised standards
  • behaves ethically, and acts with integrity and honesty
  • has the required skills and competencies to do the job
  • manages conflicts of interests transparently
  • safeguards the security of client money
  • manages its finances appropriately
  • provides adequate and appropriate indemnity for your work
  • handles complaints and disputes fairly.

 

MPG hires Ryan Dando as Commercial Manager

International construction consultancy MPG has appointed Ryan Dando as Commercial Manager.

Ryan has more than 17 years’ experience in the construction industry, including over a decade working on various forms of the NEC contract.

He has worked across sectors including retail, social housing, stadia and residential as well as commercial offices, aviation, rail and design. His experience includes work on landmark projects, such as Westfield at White City, the London Olympic Games and the redevelopment of Heathrow Terminal 2.

Prior to joining MPG, Ryan was a commercial manager with Atkins, and previously worked as a senior cost engineer and contract administrator with Crossrail on the Bond Street station project and with Morgan Sindall as commercial manager for MEP and fit out of Crossrail stations.

His core skills include cost engineering, project controls and contract administration under the NEC form of contract. Other skills include anticipated final account management, procurement of works packages, tender analysis and contract negotiation as well as early warning and compensation event management.

Protect your interests in construction contracts – our report shows you how

As construction contracts get more complex, our new report shows you how to protect your interests 

With construction disputes on the rise, it is vital that contractors understand how to protect their interests. Our study explains how to get to grips with sweeping changes to standard contracts commonly used in the UK and the Gulf region.

The 20-page report titled ‘Construction Claims and Defence’ also looks at global claims, a means of getting compensation in a dispute even when the circumstances aren’t crystal clear.

Our managing director, Michael Gallucci, says: “The construction sector in the UK is awash with disputes and legal claims. A healthy reaction to that is that organisations are increasingly using standard contracts that are better suited to higher value, collaborative projects. Figures suggest an increase in the use of NEC and FIDIC contracts with use of JCT contracts declining. Having said that, these are complex instruments made even more complex in the way they can be interpreted and implemented by different jurisdictions and in different contract agreements. The comprehensive update to the FIDIC Yellow greatly extends its coverage and makes it even more important that contractors and engineers have comprehensive and well-managed programmes in place.”

The report outlines the changes to FIDIC. It includes sections on concurrent delay principles and implied terms regarding prevention. The report explains when and how to make a claim under the contract and when to claim for breach of contract. It also looks at extension of time assessments, claims for additional payment for prolongation and claims for disruption and acceleration costs.

Download it at mpgqs.com/construction-claims-download/,

Risky Business: Don’t start work until you’ve finalised the contract

A new legal ruling is a stark warning to contractors about beginning work on a project without finalising the contract first, says a leading construction consultancy. 

MPG, which advises contractors, employers and project managers worldwide, says the industry should take note of the Court of Appeal decision. It reversed a previous decision on the dispute between AMEC and Arcadis, ruling that even though a contract hadn’t been completed, terms in a letter of instruction still applied. 

MPG’s managing director, Michael Gallucci, says: “In this particular case, it meant there was a legally-binding cap on the contractor’s liability, but the ruling means that any terms in a letter of instruction are binding until there is a finalised contract that specifies a different agreement.” 

Problems began when Arcadis was employed to design a car park and began work with only a letter of instruction from the employer, AMEC. It was planned that both would sign up to a detailed contract but it was not finalised. 

When it was discovered that the car park had to be rebuilt because of faults, Arcadis rejected claims that it was liable because of design error. It also said a cap on liability had been agreed at £610,000, compared with the £40 million cost of rebuilding the structure. 

When the case first came to the Technology and Construction Court, those claims were rejected, meaning Arcadis would be fully liable, but the Court of Appeal ruled otherwise. That was because even though the letter of instruction didn’t mention a liability cap, it alluded to pre-existing terms and conditions agreed between the two companies on another project, which did specify a cap. 

Michael sums up: “It’s often tempting to forge onwards with a project but contractors do so at their peril without a finalised contract in place. We would advise all parties to ensure that an adequate contract is concluded before work starts, and that the contractor has effective programmes in place to ensure that any claim that does arise can be resolved without the need to go to court. That might seem obvious but it is surprising how many projects go ahead without these fundamentals in place. It is one reason that the construction sector is beset by legal disputes, so contractors, employers and PMs involved with new projects all have a responsibility to ensure best practice is observed before work begins and throughout the lifetime of the project.” 

For more information, or advice on construction contracts, contact Michael Gallucci LLM MRICS MCIArb MAE, Managing Director, MPG, Email: michael.galucci@mpgqs.com 

Legal ruling highlights importance of preparation

Preparation is crucial when taking a construction dispute to court, a new legal ruling has underlined.

Construction consultancy MPG says the High Court decision should also serve as a reminder to contractors that they need effective programmes in place before commencing a contract in case there is a dispute in future.

The claimants in Clutterbuck and another v Cleghan lost because they failed to call an important witness, and the court refused to allow them to plug gaps in expert evidence at the last minute.

Michael Gallucci, managing director of MPG, said: “This is a wake-up call for anyone contemplating legal action, and their litigation team, that you must be fully prepared before you walk up the steps of the court building.”

Mr Gallucci, who advises leading construction companies and speaks internationally on contract law, said contractors must also prepare to protect themselves in the event of a dispute before even beginning work on a project. “Programmes are absolutely vital when claiming for delays or combating counter-claims,” he said. “They become yardsticks against which to measure the effects of delays, which are a frequent cause of disputes.”

An RICS accredited mediator, Mr Gallucci said too many property and construction disputes end up in court. “Instead of rushing headlong into what should be the last resort, the parties in a dispute should seek to resolve their problems through mediation, which is quicker and less expensive,” he said. “The Clutterbuck trial lasted 11 days in the High Court, no doubt racking up a big legal bill for the claimants who in the end walked away empty-handed. There is no way of knowing if they would have had a better outcome if they had settled by mediation, but in most cases, it is a better and less painful way to reach a conclusion.”

He added: “Settling out of court with the help of a qualified mediator can even mean that the parties don’t fall out irrevocably and can work together again. That’s rarely the case after an acrimonious court battle.”

Ten fatal errors to avoid with NEC construction and engineering contracts

Leading construction consultancy MPG has joined forces with award-winning law firm DAC Beachcroft to warn about deadly mistakes that contractors must avoid when using NEC contracts.

NEC contract templates are already widely used in the UK, from small procurement jobs to huge schemes such as the Olympic Park, and new templates in the latest version (NEC4) extend their use to new types of projects.

Their success is built on the efficiency of being able to use a ready-made and proven contract for project management and to define legal relationships. This is both more efficient and less expensive than writing a new contract from scratch.

But there are risks, which are highlighted by Michael Gallucci, managing director of MPG, and Michael Blackburne, a partner at DAC Beachcroft, in a new seminar being offered free to contractors, subcontractors, project managers, employers and other NEC users.

They have compiled this list of the top ten areas to focus on when using NEC contracts to avoid potentially catastrophic failures.

1.    Administrating the NEC

2.    Accepted programme and revisions

3.    Working areas

4.    Notifications

5.    Compensation events and time bars

6.    Early warning

7.    Defined costs, disallowed cost and defects

8.    Design – standard of care

9.    Completion

10. Compulsory adjudication

Michael Gallucci said: “With construction disputes on the rise, it’s obviously vital to have a suitable contract in place before embarking on a project. NEC is an excellent starting point, but it is crucial that contractors understand what they are getting into and manage the process properly.”

The seminar, which is offered free and on site at the contractor’s premises, also covers what it means for contractors to enter into an NEC contract and what they should be doing to ensure it works for them and not against them.

To book a seminar at your premises, email sarah.dexter@mpgqs.com

The seminar offers top tips for employers and project managers as well as covering how contracts should be administered and how to make claims through compensation events and early warning notices.

Key benefits of the new NEC4 contract suite are

  • Streamlined processes and updated definitions
  • Improved contract administration and reduce admin costs
  • Greater clarity and reduced potential for problems
  • Provision for BIM and early contractor involvement
  • Improved Risk Opportunity and Risk Management

There is more information at www.neccontract.com/About-NEC/NEC4-suite-of-contracts

Court ruling set to impact construction disputes

A new court judgement will have a major impact on disputes involving companies in liquidation, says leading construction consultancy MPG.

The decision in the Technology and Construction Court (TCC) means that companies in liquidation will not be allowed to use adjudication to settle financial claims.

Michael Gallucci, MPG’s managing director and an RICS accredited mediator, said: “Companies in liquidation and their advisors have often sought to settle claims through adjudication, even though they have generally been unsuccessful. This judgement will put an end to those kind of claims, saving time and costs for the courts and respondents.”

The case of Michael J Lonsdale (Electrical) Ltd against Bresco Electrical Services Limited (in Liquidation) related to claims and counter-claims between the two companies over a sub-subcontract.

When Bresco began adjudication proceedings to identify its financial entitlement, Lonsdale responded by calling on Bresco to withdraw the proceedings and also requested that the adjudicator, who had already been appointed, should resign, based on an earlier judgement. After Bresco and the adjudicator both refused to withdraw, Lonsdale took the case to the TCC.

Because Bresco was in liquidation, Mr Justice Fraser QC ruled that the claims and cross claims could not be separately enforced. Instead, under the Insolvency Rules, there was a single claim to a net balance once the various claims and counter claims were set off against each other.

This meant that the claim could not be settled by adjudication proceedings because it was not a claim “under the contract” and therefore an adjudicator would not be authorised to rule on it.

The effect of the judgment is that companies in liquidation will not be allowed to use adjudication proceedings to pursue financial claims where there are claims and cross claims between the parties.

The Court also awarded a permanent injunction against Bresco pursuing such an adjudication against Lonsdale.

Mr Gallucci added: “It is likely that any adjudicator appointed in a similar case would now resign if a respondent requested that he or she should do so based on the TCC judgement.”

MPG joins high profile international bid team

MPG already has a track record of providing quantity surveying and other services for big design projects such as stadia, airports and rail stations worldwide. It now hopes to create more opportunities to work on similar large developments as part of the Design International consortium

Construction contracts one year on

Two new standards have been unveiled in the past 12 months with a key objective of cutting the number of disputes and court cases in the construction sector

Don’t litigate, mediate

By Michael Gallucci LLM MRICS MCIArb MAE, Managing Director, MPG construction consultants

We don’t know just how many construction contracts end in dispute, but it’s plain to see the sector is far more prone to legal wrangling than other spheres of business.

The issue was officially recognised with the launch of the Conflict Avoidance Pledge, which aims to change behaviour in the land, property and construction industry by getting firms to look at their working practices and the way they deal with disputes.

I spend much of my time advising clients how to avoid disagreements by understanding their contracts and having proper administration in place, but I also spend a lot of time helping to solve cases that have reached the courts. My own experience reflects the wider picture that many of these arguments could have been settled without formal litigation, and without the associated costs.

It is startling how eager developers, contractors and joint venture partners are to take each other to court, even when there are initiatives designed to encourage them to seek alternative resolutions.

Both parties in a dispute are supposed to at least consider mediation before commencing proceedings, but they can circumvent the Pre-Action Protocol for Construction and Engineering Disputes by mutual agreement and routinely do so.

Often, contracts stipulate that parties should seek mediation in the event of a dispute, but it’s not mandatory and generally the clause gets ignored.

But look at what happens once you head for court. As the aggrieved party, you complete a form and send in a court fee. In the construction sector, we’re used to dealing with big numbers, but even a relatively modest £100,000 claim will usually mean a court fee of £5,000, and it rises proportionately.

Next, you send your claim to the court. The other party responds. The judge tells you both to go to see a mediation service. Given that 90 per cent of cases get settled at mediation, surely it would make sense to circumvent the court process and, for a fraction of the court fee, go to mediation.

Another huge benefit of mediating is the time it takes to resolve a case, usually only one or two days. Compare that with the average length of time it takes a case to get resolved in the UK courts, which according to one report is 12 months. In the UK, we supposedly have a fast track court process, but while it may be swifter than similar systems elsewhere, it is certainly a stretch to describe it as fast.

Why are firms reluctant to mediate? One reason is that one party or another in any dispute may simply hope the problem goes away before it comes to the crunch and they have to face the judge. Another is that mediation may seem unfamiliar.

Yet mediation is not uncommon in the construction industry. As I mentioned earlier, cases that reach the courts routinely wind up in mediation. This is because official guidance states that courts should encourage parties to use alternative dispute resolution, which almost always turns out to be mediation.

Independent mediators are there to get a discussion going so that the parties can resolve their differences. Unlike with the brutal winner and loser scenario of a court judgement, this can enable the business relationship to continue.

I fervently believe that prevention is better than cure, and I would urge contractors to get expert advice on contracts, establishing programmes and setting up proper administration. However, if things do go wrong, I would urge everyone involved in a dispute to consider mediation as the first point of call.

In fact, I am so passionate about the concept that I have just become an RICS Accredited Mediator