1. Remediation Contribution Orders: Upper Tribunal decision in Vista Tower appeal
The Upper Tribunal (Lands Chamber) (“UT”) recently delivered its judgment in the appeal against a Remediation Contribution Order (“RCO”) granted in January 2025 for over £13.2 million against 76 respondents.
The case was concerned defective works at Vista Towers, a high rise building in Stevenage (the “Property”) that the Respondent in the appeal, Grey GR Limited Partnership (“Grey”) had purchased in 2018 from the first named Appellant, Edgewater (Stevenage) Limited. Significant fire safety defects were discovered at the Property post-acquisition. The then Department of Levelling Up, Housing and Communities made a Remediation Order against Grey under the Building Safety Act 2022 (“BSA”). Grey then sought, and was granted by the First Tier Tribunal (“FTT”), a RCO under s124 of the BSA against the first Appellant and 75 of its related companies (together “Edgewater”).
Edgewater appealed the FTT’s decision on four grounds:
- that the FTT did not have jurisdiction under s124 of the BSA to make a joint and several RCO against multiple parties;
- it was not just and equitable for the RCO to be granted against all Edgewater appellants;
- that the risk standard to be applied when assessing a relevant defect under s120 of the BSA should have been “intolerable” and not merely a low risk by reference to the PAS9980 standard;
- that the costs included in the RCO for remediation of the works were not reasonable namely full replacement of a specific type of cavity filled wall (“Type 1 Wall”).
The UT rejected the appeal on all grounds and in respect of each found:
- ·on reviewing s124, rules of statutory interpretation, and contrasting with s130 dealing with Building Liability Orders, the UT found that the FTT did have jurisdiction to make joint and several RCOs and decide who pays and what amount;
- that the FTT was not wrong in finding it was just and equitable to make the RCO having reviewed all the evidence, including inadequate evidence of Edgewater’s corporate structure. The FTT has very wide discretion in considering what is just and equitable in respect of each case, and there was no requirement that the respondent(s) to a RCO need have been involved in the development or have profited from it;
- in assessing if there is a relevant defect (as defined in s120 of the BSA) what is key is whether the defect causes a building safety risk and is not subject to any threshold or scale under PAS9980 or otherwise;
- although the experts agreed on a technical basis that costs involved in wholesale removal of the Type 1 Wall were not proportionate, other considerations such are urgency and expediency meant the FTT was entitled to find it was justified to include these costs.
This decision clarifies that the Court does have the ability under s124 of the BSA to make RCOs on a joint and several basis. Assessing if the making of a RCO is “just and equitable” is not contingent on a party participating in or profiting from a development but that all relevant evidence needs to be considered in reaching a decision. In assessing a relevant defect, risk under s120(5) means any risk to safety of people in a building arising from fire or structural collapse and is not subject to any threshold. Finally in determining if it is just and equitable to include specific costs in a RCO all relevant criteria, including urgency and expediency, needs to be considered.
2. Privy Council considers variations and procedural requirements under FIDIC
The recent case of Uniform Building Contractors Ltd v The Water and Sewerage Authority of Trinidad and Tobago [2026] UKPC 2 provides important guidance from the Judicial Committee of the Privy Council (“Privy Council”) on the interpretation and enforcement of FIDIC contracts, particularly the strict application of procedural requirements for variation claims under lump sum design and build contracts.
The case concerns a contract the between the Water and Sewerage Authority of Trinidad and Tobago ("WASA") and Uniform Building Contractors Ltd ("UBC") for the design, supply and installation of approximately 28.43 km of pipeline over 2 separate packages with a combined lump sum price of circa £3 million. The contract dated 23 May 2007 was an amended FIDIC Yellow Book (1999 Edition) (“Contract”).
UBC instituted first instance proceedings in the High Court of Trinidad and Tobago (“High Court”) in May 2013 claiming, amongst other items, four separate items of works as variations instructed by the Engineer including relocation of pipe works, removal and importation of backfill and night works (the “Alleged Variations”). The High Court found that the Alleged Variations where already covered as part of the works under the Contract, and so were not variations, and dismissed the claim. UBC appealed and the Court of Appeal of Trinidad and Tobago (“CA”), relying heavily of the evidence of the Engineer, found that despite contractual provisions there was “flexibility” in day to day operations, meaning the Alleged Variations were variations under the Contract approved by the Engineer. The CA allowed the appeal in the sum of circa £1.5 million.
The Privy Council found their task on appeal was “fourfold” being to:
- consider the contractual terms and determine what was included in the lump sum price;
- assess, following the contractual consideration, if the Alleged Variations were variations under the Contract;
- assess the procedural failings of UBC under the Contract and determine whether they bar UBC making any claim for the Alleged Variations; and
- consider generally the issue of fairness and to what extent waiver or estoppel may have arisen.
On the first two points the Privy Council found the Contract, as a lump sum design and build contract, envisaged that the Contractor had allowed for all foreseeable risks in its rates. The Privy Council reviewed the Contract as a whole, including the Employer’s Requirements and Bills of Quantities to assess the broad extent of the risks being undertaken by UBC. The Privy Council then considered the definition of Variation in clause 1.1.6.9 of the Contract being “any change to the Employer’s Requirements or the works, which is instructed or approved as a variation under clause 13”. In light of that definition they found that none of the Alleged Variations constituted a variation under the Contract. The Privy Council’s reasoning was that the comprehensive Contract provisions meant the Alleged Variations were not variations as they were covered at various points through the Contract as a risk that UBC should have allowed for within its price.
The Privy Council then considered the procedural failures of UBC and the Engineer in the variation regime under clause 13 and the Contractor’s right to claim additional time and money under clause 20. Clause 20.1 has an express requirement for the Contractor to give notice of a claim within 28 days of becoming aware of it otherwise the Contractor would be barred from any entitlements for time or money. The Privy Council found that the procedural requirements had not been followed by either the Engineer or UBC under clause 13, which would require notice of a determination to be issued by the Engineer, or by UBC under clause 20.1 and the requirement to issue a notice of claim under clause 20.1 was a condition precent to entitlement. The Privy Council found the contractual regime was to ensure certainty and that failure to comply with procedures meant that UBC had no entitlement for additional monies for the Alleged Variations.
UBC raised arguments of waiver and estoppel before the CA on the basis it would be unfair for the Employer to benefit from variations without paying for them. While the CA accepted this position it was rejected by the Privy Council as: (i) these arguments had not been raised before the trial judge so should not have been allowed before the CA; (ii) the Engineer’s authority under the Contract did not permit it to either amend the Contract or relieve parties of obligation to comply with procedural requirements; and (iii) any waiver could only have been given by WASA and it was incorrect to equate the Engineer with the Employer in such respect.
The Privy Council’s decision reiterates several important points that parties on either side of a construction contract (of whatever form) should be aware, namely:
- to correctly follow contractual procedures for any claims for variations, particularly meeting any timeframes or documentary requirements that might bar recoverability;
- the entirety of a contract needs to be assessed to determine the full extent of the Works and the risk borne by the Contractor;
- the Engineer (or certifying entity under a contract) is unable (subject to specific contract conditions) to vary a contract or waive procedural requirements; and
- ensure any claims for waiver and estoppel in a dispute are pleaded early and thoroughly evidenced.
3. Adjudication enforcement denied for contract formation issues
In February 2026 we reported on the case of High Tech Construction Limited v WLP Trading and Marketing Limited [2025] EWHC 3209 as an example of the Court’s willingness to issue Freezing Orders preserving assets pending adjudication enforcement proceedings Legal Developments in Construction Law: February 2026 | Insights | Mayer Brown. The decision in those enforcement proceedings has now been handed down and provides a cautionary tale on contract formation and use of adjudication.
To recap on the background to the case, Contractor High Tech Construction Limited (“HTC”) commenced an adjudication for monies outstanding on works it had done on a development in North West London (the “Property”) owned by the Employer WLP Trading & Management Limited (“WLP”). The Adjudicator found for HTC in an amount of £2.1m, being the remaining contract sum less the sole initial payment of £250,000. In the enforcement proceedings HTC sought to have the adjudication decision enforced but the Court has denied the enforcement.
WLP’s main grounds for resisting enforcement were:
- the adjudicator lacked jurisdiction as he was not appointed under the genuine contract between the parties; and
- the adjudicator’s decision was procured by fraud.
The parties disagreed fundamentally as to the contract between them. HTC asserted it was based on a JCT Design and Build sub-contract 2016 allegedly signed in January 2023 and circulated by email in June 2023 (the “JCT Contract”). It was under the JCT Contract that the Adjudicator was appointed. WLP denied that any such contract was ever agreed and asserted that the contractual relationship between the parties was based on 2 contracts, the first by a series of oral agreements and WhatsApp messages for enabling works and the second for a lump sum for reinforced concrete frame works. While the parties agreed as to the test for summary judgment, and that each case stood a real prospect of success in the enforcement proceedings, they disagreed as to what formed the contract between them.
On reviewing the relevant precedents around contract formation and an adjudicator’s jurisdiction, the Court distilled the following principles:
- a dispute as to the true nature of the contractual relationship between parties may influence a payment dispute between parties and an adjudicator’s jurisdiction;
- where parties disagree if a foundational contract with an adjudication clause exists, if the defending party has a real prospect of success, the summary judgment should be denied;
- where parties agree as to the existence of a foundational contract but disagree as to works undertaken, that is a substantive issue and the adjudicator will have jurisdiction;
- if parties agree as to the foundational contract but disagree as to precise terms the adjudicator will still have jurisdiction;
- parties in enforcement proceedings may argue contractual issues are either “existential” if resisting enforcement or “substantive” if seeking enforcement but the court will examine all the facts and act on the principle that there must be an appropriate construction contract in order for the adjudicator to have jurisdiction.
The Court found that on the evidence there was an existential issue surrounding the contract between the parties and therefore the adjudicator may not have had jurisdiction at all. In those circumstances it was not appropriate for enforcement to be granted.
On WLP’s second challenge as to fraud the Court found that while fraud can be grounds for refusing enforcement, clear and unambiguous evidence of fraud needs to be provided. This is the case even if the fraud was discovered after the adjudication, as was the case here. As the Court had already ruled on the jurisdiction challenge it was not necessary for the Court to consider the fraud analysis further.
This case highlights the need for an agreed contract between parties, clear as to terms and obligations. This not only gives parties contractual recourse for breach, it also removes both dispute as to the existence of the contract and potential enforcement issues for adjudicator’s decisions.
High Tech Construction Ltd v WLP Trading and Marketing Ltd [2026] EWHC 152 (TCC) (30 January 2026)
4. Government publishes contract payment information guidance under s70 Procurement Act 2023
The Government Commercial Function has issued contract payment guidance (“Guidance”) to allow contacting authorities to comply with section 70 of the Procurement Act 2023 (“PA2023”). Section 70 of the PA2023 is expected to be in force on 1 April 2026 and implemented by the draft Procurement (Amendment) Regulations 2026 currently before Parliament. Section 70 of the PA2023 sets out obligations to publish information about payments under public contracts.
The Guidance confirms:
- authorities must publish on a central digital platform information about payments over £30,000;
- the exemptions to the publication obligation;
- what information must be uploaded to the digital platform for each payment;
- when it is appropriate for redaction of supplier information, e.g. in the case of national security; and
- how to value payments and the method of publication.
The Procurement (Amendment) Regulations 2026
Guidance_-_Contract_Payment_Information_FINAL.pdf
5. Government Insolvency Statistics show construction remains worst performing UK sector for insolvencies
The Government’s Insolvency Service has issued its insolvency figures for January 2026 which show that construction is the UK’s worst performing sector for insolvencies in 2025. This is the fourth year in a row that construction has held that position. Construction accounted for 17% of insolvencies in 2025 ahead of retail on 16% and hospitality on 14%. The total number of insolvencies in the UK construction sector was 3,728 but was lower than the 2024 figure for the sector of 4,032 insolvencies.
Commentary - Company Insolvency Statistics January 2026 - GOV.UK
6. CLC publishes new reports on home improvement works
The Construction Leadership Council (CLC) has recently published a number of reports from its Repair, Maintenance and Improvement (“RMI”) working groups including:
- reports on the workforce capacity, skills and delivery readiness across the domestic RMI sector; and
- a report from the National Home Improvement Council titled “Protecting what matters” focusing on raising standards, strengthening competence and financial protections in the domestic RMI sector.
New RMI Workstream Reports Published – Construction Leadership Council
7. Government launches consultation on secondary legislation on the UK's Carbon Border Adjustment Mechanism (CBAM)
The Government has published a summary on its CBAM policy and various draft regulations to support it. The CBAM was introduced in the Finance (No. 2) Bill 2026, which has just passed committee stage in the House of Commons, and is due to commence on 1 January 2027. The CBAM is a levy on greenhouse gas emissions embodied in various imported materials including aluminium, cement, fertiliser, hydrogen and iron and steel. The intent of the CBAM is to impose a carbon price on specified imported goods comparable to carbon prices that may be incurred on UK produced goods. The draft regulations released to support the CBAM are:
- Carbon Border Adjustment Mechanism (Administrative Provisions) Regulations 2026 covering administrative requirements such as information required on registration, record keeping, valuation of CBAM goods and reimbursement arrangements;
- Carbon Border Adjustment Mechanism (Calculation of CBAM Rate and Determination of Carbon Price Relief) Regulations 2026 covering calculation of the CBAM rate and availability of carbon price relief including verification and calculation and required record keeping;
- Carbon Border Adjustment Mechanism (Transitory Provision) Regulations 2026, which modifies dates for payments, registration, accounting periods and penalties for the transition period (1 January 2027 to 30 June 2028).
The consultation on the draft regulations runs until 24 March 2026.
Carbon border adjustment mechanism (CBAM): Policy Summary - GOV.UK
Draft regulations: Carbon Border Adjustment Mechanism (CBAM) - GOV.UK
