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Kc Legal Update KC LEGAL UPDATE Summer 2020 In this issue... “It’s Complicated” Deciphering the English Government’s Response to SARS-COV-2 and its Impact on Contracts By Sean Wilken QC Group Loyalty A Company v X and Others By Jennie Wild Coronavirus, Adjudication and Injunctions By James Frampton WELCOME to the Summer 2020 Edition of KC LEGAL UPDATE CONTENTS “It’s Complicated”: Deciphering the 04 English Government’s Response to Sars- Cov-2 and its Impact on Contracts By Sean Wilken QC A Critical Look at Broseley London v Prime 10 Asset: Would Permitting a Final Account Much has changed since the last edition As our families adapted to home schooling, no travel unless Adjudication have been a “Remarkable essential and one daily outing for exercise; on the work front Intrusion” of KC Legal Update (Winter 2019/20). Technology and Construction Court hearings and arbitrations By Harry Smith turned into remote hearings and applications, with new rules, We have adapted to remote hearings, protocols and guidance being rapidly drawn up by the courts and institutional bodies. We got to grips with Teams, Zoom, BlueJeans, Keating Cases home working, virtual meetings Skype and Starleaf (amongst others). 14 A selection of reported cases involving members of Keating Chambers and live webinars. The speed of the A need for social connection has remained. A Keating Strava running group was set up which incorporated several of our Group Loyalty – A Company v X transformation is something that none children when we were restricted to exercising once a day. We and Others of us could have imagined just a few have had virtual chambers drinks and ‘lunch’. An internal social 16 networking site was set up. We have walked 10,000 Steps for Justice By Jennie Wild months ago. (separately this year) for the London Legal Support Trust and ran 2.6km each to make up the 26 miles of the cancelled London Coronavirus, Adjudication and Injunctions Keating Chambers, in common with all organisations in the UK Marathon for ‘Kids Out’ and Oxfam. 20 By James Frampton and internationally, had to respond rapidly to the changes required Many of our barristers have now done live webinars from their back in March of this year. The impact was being felt even before Whose Risk is it Anyway? Performance homes with audiences in the hundreds, some have sat as Deputy then, particularly through the work and clients we have around the High Court Judges, arbitrators and mediators from their studies. 22 Security Revisited world and as we tried to respond responsibly. We have fully embraced digital marketing and learnt to hold virtual By Sean Wilken QC In March, our chambers moved all staff to working from home catch ups with our clients so we can stay in touch. We are adapting in line with government guidance. We sent a letter to our clients our building for those who need to work in it to respond to in person Brief Encounters explaining our move to working on a fully remote basis and how hearings as physical courts continue to re-open. 25 By John McMillan we could all stay in touch and continue to operate. Unprecedented We have produced this Summer edition of KC Legal Update in very times. different circumstances to the last edition. We hope you and your families are well and safe and have been able to adapt as we will keep doing. – 2 – – 3 – “IT’S COMPLICATED”: “Trying to advise parties DECIPHERING THE ENGLISH to a contract, one has the GOVERNMENT’S RESPONSE immediate problem, that the law is not clearly accessible” TO SARS-COV-2 AND ITS IMPACT ON CONTRACTS¹ By Sean Wilken QC On 11 May 2020, the Government issued eight items of Covid-Secure guidance The English² Government’s response to for particular sectors11 including the construction industry.12 These pieces of SARS-CoV-2 is legally and factually complicated. guidance emphasise two things. First, that the reaction to SARS-CoV-2 is to be one of employers making their own assessments In this article I try to unpack the elements of it of risk. Two, based on that assessment, Then on 10 May 2020, the position there are no hard actions, other than the and then attempt to see how those elements may changed again. Via a speech not given assessment, that must be taken. There are to Parliament and not in guidance or instead a series of possible actions that impact on the contracts that people may have. regulation or legislation, a new approach might be considered or “might be needed”. was announced. This speech was the new foundation of the Government’s position – On 12 May 2020, the Government amended indeed if on 11 May 2020 one accessed the the Regulations using emergency powers Government portal on SARS-CoV-2 one was to permit people to leave the house told that the current position was as set out indefinitely for exercise, to visit parks, in the speech. outdoor sports areas and garden centres. On the back of that, four new pieces At the same time as the Government of guidance emerged: the “Our Plan to was introducing and amending the Rebuild”;7 the “Staying Alert”;8 the “Staying Regulations, the devolved administrations Safe”;9 and the “FAQs”.10 There is no attempt were also introducing and amending their to link these pieces of guidance back to regulations – in rather different ways. In so doing, there are (currently) four elements: The Act4 revoked SI 2020/129. In so doing and despite Throughout this period the Government either the Act or the Regulations. Further, Thus, in Scotland, construction sites were • The Coronavirus Act 2020 (“the Act”); that revocation, the Act grandfathered the previous was also releasing various items of the speech and Our Plan to Rebuild referred “locked down” from the outset but not in declaration made in and by those regulations (SI guidance as well as stating its policy to further additional guidance – Covid- England. As time has progressed, however, • Various regulations; 2020/129) as if it were made under the Act.5 So far, this is position – as it altered – in relation to Secure guidance which would apply to the differences between Scotland, Wales • Numerous items of guidance; and perfectly orthodox and consistent with the Government’s SARS-CoV-2. The only legislation in play, various work-places. and Northern Ireland and England have • Political statements. response to SARS-CoV-2 being within the four walls of however, remained the Regulations. become more stark. As at time of writing, the Act. Then, after the new pieces of Guidance Scotland, Wales and Northern Ireland Together, I call this the “quadripartite approach” or “the That remained the position until 7 May were issued, a speech was given (this time maintain the position as it had been in puzzle”. In this article I focus solely on the contractual Yet, on the same day as the Act came into force revoking 2020. Then, the Government issued to Parliament) which may or may not be a England before 10 May 2020 and their aspects, I do not seek to address in detail any public law those regulations (SI 2020/129), the Government further guidance: Guidance on responsible source of new alleged obligations. regulations therefore significantly diverge arguments as to the overall validity of the puzzle. introduced the Health Protection (Coronavirus, contractual behaviour in the performance from those applicable in England.13 Restrictions) (England) Regulations 2020 (SI 2020/350) and enforcement of contracts impacted by The Pieces of the Puzzle (“the Regulations”). The Regulations were not, however, the Covid-19 emergency.6 introduced under the Act but under sections 45C(1), (3) Before the Coronavirus Act (“the Act”) came into force, (c), (4)(d), 45F(2) and 45P of the Public Health (Control of the Government’s response to SARS-CoV-2 was set out Disease) Act 1984. in The Health Protection (Coronavirus) Regulations 2020 (SI 2020/129). The Act in the main came into force on 25 March 20203 which is, of course, after the “lockdown” had been announced as a matter of policy. 6 Currently at this locale but that may obviously change:vhttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/883737/_Covid-19_and_ Responsible_Contractual_Behaviour__web_final___7_May_.pdf. 7 https://www.gov.uk/government/publications/our-plan-to-rebuild-the-uk-governments-covid-19-recovery-strategy. 8 https://www.gov.uk/government/publications/staying-alert-and-safe-social-distancing/staying-alert-and-safe-social-distancing. 1 This article has benefitted from discussions with Tom de la Mare QC at Blackstone Chambers. Any mistakes are obviously my own. 9 https://www.gov.uk/government/publications/staying-safe-outside-your-home/staying-safe-outside-your-home. 2 Reaction to the coronavirus is a health question devolved to the Welsh; Scottish and Northern Irish administrations – a fact which has become increasingly important. For ease, where 10 https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do. I refer to the Government in this article, I mean the English Government. 11 All eight can be found here - https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19. Section 87(1). 3 12 https://assets.publishing.service.gov.uk/media/5eb961bfe90e070834b6675f/working-safely-during-covid-19-construction-outdoors-110520.pdf. Schedule 21 para 24(1). 4 13 For the extent of the divergence – see https://gov.wales/sites/default/files/publications/2020-05/the-health-protection-coronavirus-restrictions-wales-regulations-2020-as- 5 See Sch 21 para 24(2). amended.pdf.
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