CIC Blog: 2018

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Criminally Overlooked: Ex-Offenders in Construction

Andy Gullick

Chief Executive

RIFT Social Enterprise

The spotlight is now firmly on the challenges facing UK construction. Despite the uneven political and economic landscape, the industry will keep growing through 2022. According to the latest Construction Skills Network report, construction output is expected to grow by 1.3% over the next five years, creating 158,000 new jobs to handle infrastructure and housing demands. Recruiting and training these workers means seizing on new sources of labour.

In some specialist occupations, like wood trades and interior fit out, the need for new workers remains acute. Additionally, the ongoing challenge of an ageing workforce will become more pressing if Brexit stems the flow of overseas workers. As an industry surviving on innovation, construction needs to set out a compelling vision to the more diverse and skilled intake it urgently needs.

Many construction companies are actively looking to recruit ex-offenders to plug the labour shortage, while skills and employment support programmes aim to link prison leavers with the sector. In 2017, the CITB commissioned three projects (Scottish Building Federation, Lendlease & BAM Nuttall) to help construction employers recruit and retain ex-offenders. Figures for 2013/14 from the Skills Funding Agency showed over 30,000 Offender Learning Enrolments (aims) on construction courses in the English prison education system and almost 22,000 Offender Learning Achievements (aims) in the same year. The sector has recognised that prisoners and ex-offenders can solve the skills shortage, but there are still barriers to overcome.

Recent research by Working Links shows:

  • 55% of employers would reject an ex-offender applicant outright, or pick an equally qualified candidate with no conviction instead.
  • Only 20% of employers have knowingly recruited ex-offenders.
  • Employers wrongly distrust ex-offenders. In reality, over 60% of employers found that they worked as hard as, or harder than, those with no convictions.

Recent government figures show 46% of prisoners are interested in working for themselves after release. Given that 12% were self-employed or working under the Construction Industry Scheme (CIS) before prison, and that most prisons offer vocational training in construction, there's a significant untapped labour market here.

RIFT Social Enterprise wants to help bridge this gap and can identify prisoners due for release within nine months who are qualified for and interested in CIS work. We'll discuss the implications of self-employment with them, giving them the knowledge and awareness of the responsibilities that they will need.

RIFT can arrange for construction organisations to meet candidates suitable for CIS work, to discuss roles and expectations. Candidates offered potential roles on release will be assigned a personal RIFT tax specialist to fund the establishment of their self-employed status, take care of the legalities and provide up to six months' post-release support. We'll make sure they don’t fall foul of HMRC regulations and therefore represent sustainable, long-term labour for construction firms.

At RIFT we have a close working relationship with HMRC, a dedicated helpline and access to specialist HMRC advisers to handle issues promptly and efficiently. RIFT Social Enterprise is, to our knowledge, the only organisation offering prisoners a dedicated one-to-one tax advice service and bespoke advice and training on self-employment.

As a former Prison Governor in three prisons and a Director of a company awarded a £30m government contract to enhance offender employment prospects I understand the prison system and its limitations. I am committed to giving prisoners the best possible chance of successful rehabilitation and sustainable employment.

Contributor: Andy Gullick is the Chief Executive of RIFT Social Enterprise, a not-for-profit organisation, established in 2018 by RIFT Group Chairperson Jan Post to bring world-class tax expertise within vulnerable people's reach. For further information please contact Andy on 07538 234272 or at agullick@riftse.co.uk or visit http://riftgroup.com/rift-social-enterprise/

 

 

 

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Compromising a construction and engineering dispute through mediation

 

Niall Lawless 

Chartered Arbitrator and Engineer, Adjudicator, Mediator

 

 

 

 

 

CIC Construction Industry Mediation Panel
The CIC is considering the creation of a CIC Construction Industry Mediation Panel, and which would accept Mediation Panel applications from accredited experienced Mediators who are Fellows of CIC member organisations. Expressions of interest to Chi Wong (cwong@cic.org.uk) are welcome.


Mediation works best when there is balance and harmony between people and the participants’ trust in the process.

Mediation process is confidential, private and structured. It has five stages: Introduction, Information Exchange, Option Generation, Negotiation, and Conclusion. Information Exchange and Option Generation are by far the most important. Mediation is not adversarial and works best where the parties are willing to cooperate together to solve a shared problem, and because nothing is agreed until everything is agreed in writing, it allows the parties to take risks when they come to deal with individual items.

Mediation people includes the parties, their lawyers or representatives, and the mediator(s). 

Commercial mediation begins with the parties agreeing to mediate, and usually ends with the parties compromising their dispute. The parties are the stars; most often they are common sense business people motivated by revenue and contribution, and the desire to continue their future cooperation.

The parties’ lawyers can make or break the mediation. Good mediation lawyers can move seamlessly to advisor from advocate. In their role as advocate they will succinctly summarise legal arguments, but not in an adversarial or combative way, gifting litigation risk to the mediator. They allow the business principal to take the lead, preparing their clients offering advice, guidance and information on negotiation and mediation. Good mediation lawyers cope well with being challenged privately by the mediator, they are experienced and wise, and they are committed to find the best possible solutions for their client.

During the mediation a neutral third party, the mediator, assists disputing parties’ compromise their dispute using communication and negotiation skills. Essential parts of the role of mediator are to be the guardian of the mediation process, to facilitate the exchange of information, to help the parties reality check their position, and to leave no value on the table. The mediator should be adept using the phone, as it will be essential in early engagement relationship building, and promptly discussing and agreeing the manner in which the mediation shall be conducted. The mediator should be comfortable dealing with feelings, where there is a fractured relationship, the mediation may have considerable emotional content. As mediator I always commit to follow the European Code of Conduct for Mediators which sets out a number of principles to which individual mediators may voluntarily decide to commit themselves. In particular to commit to conduct the proceedings in an appropriate manner, taking into account the circumstances of the case. This might mean adopting an evaluative or facilitative mediation model, and other apt intervention.

I believe that where construction and engineering disputes revolve around matters of fact, the evaluative mediation model often works best, and it is construction and engineering professionals with practical hands-on experience and knowledge who are best placed to fulfil the mediator role.

Recently I was appointed by the International Centre for ADR (“Centre”) of the International Chamber of Commerce (“ICC”)  as a mediator in a multi-million US $ engineering dispute, which resulted in a settlement. Culturally different, the parties asked the ICC Centre to appoint an engineer mediator, with cross border mediation experience, and with particular construction, commissioning, and operation expertise. The mediation agreement required that where the parties failed to conclude an agreement within the time allowed, the mediator would issue a non-binding proposed solution to the dispute. One of the important factors that helped the parties move from entrenched positions was a robust application of the evaluative mediation model. For more information click here.

Contributor: Niall is Chair of the CIC Adjudicator Nominating Body Management Board. He is a Chartered Arbitrator, Building Services Engineer, Mechanical Engineer, Information Systems Engineer and Chartered Builder. He provides arbitration, adjudication and mediation services in commercial technology, engineering and construction disputes. https://www.linkedin.com/in/adjudicator

 

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Hidden Fear - raising awareness of how architects, planners and designers can help sufferers

Michael Kindred

Retired to France, 80, and still a games inventor and writer

Have you ever met anyone who has a phobia of getting trapped in a rabbit warren of corridors in a building, or cannot use a toilet that has a door that closes automatically, or that has to be locked?  I'm talking about claustrophobia and I have a rather high degree of it. When I'm away from the house for a longish period, I make plans for coping with the need for a toilet, and if I'm in an area with which I'm familiar, I know where my user-friendly loos are.

I wonder if you know of anyone who has an intense fear of coping with crossing bridges, or going up above ground floor in high rise buildings?  How about yourself?  I'm referring to acrophobia, and I'm really scared of heights and edges. I started my working life as an articled pupil in an architectural practice, and I had several heart-pounding moments during site visits!  Eventually I gave up trying to qualify as an architect and became an inventor of board and card games, and an author.  Much safer!

Acrophobia and claustrophobia are the  two main phobias which cause people difficulties in encountering the built environment.  The other condition which can cause difficulties is General Anxiety Disorder (GAD). Most people are reticent about talking about their phobias, out of shame, embarrassment and/or guilt. The estimated number or people with some degree of acrophobia in the UK is15,000,000 and the estimated number or people with some degree of claustrophobia in the UK is 6,000,000.

This is why I produced the free publication ‘Hidden Fear’.  It's origins began many years ago when I wanted to write about many scary encounters with buildings and other structures, which I and a lot of other phobic people had experienced.  Eventually I was very pleased to have an article on the subject published in the Architects' Journal in 1997 but it’s only in the last two years that I have tackled this final stage.

A lot has been done for people with physical disability, and I hope much more will be done.  However, since I wrote the article which appeared in the Architects' Journal, not a great deal has happened to help make buildings and other structures more user-friendly for people with hidden fears.

Through Hidden Fears I have made a list of suggestions to try to raise awareness of the issues surrounding phobias and GAD.  They are deliberately offered as suggestions, because I realise that the Building Regulations and many other legal requirements have to be adhered to by planners.

My hope is that eventually this topic, albeit very small, will become a part of the training of students of architecture, planning and design to help make our places truly inclusive.

Contributor: Michael Kindred is retired and still a games inventor. He is helping to raise awareness of hidden fears in relation to the built environment.  You can download a copy of Hidden Fears by clicking here and for further information please contact Michael on mike103.kindred@gmail.com

 

 

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Disability in the workplace

Catherine Cobb BEng (Hons) TMICE MIHE

Traffic Signals Graduate Engineer

Amey

My name is Cath and I’m an Engineer…a disabled engineer at that. I lost my left leg to cancer at the age of 7, and from the day they gave me my very first artificial leg I knew what I wanted to be when I grew up.

But I encountered barriers when pursuing my goals.  my first barrier was school, I went to see my school careers advisor for him to turn around to say ‘ahhhh Cath, you have 2 options, the first option it secretarial work so you can sit down all day or you can go on benefits and let the state keep you’.  This just made me more determined to be an engineer. 

I applied for many jobs only to be told ‘oh I couldn’t possibly employ you, you haven’t got very nice legs’ or ‘can you carry the tea?!’.

Working in a machine shop in a male dominated industry was also challenging, I would be expected to do more than my male counter parts plus they would ask me to fetch and carry things that were far too heavy for me, but I did it none the less. Why they wanted to break me was a complete mystery to me! I only wanted to work with them as an equal.

Working at Amey turned my life around, I told them at my interview that I was disabled and they never blinked. They are the only company that I have worked for that have helped me in every aspect of my career with them. 

Companies could do more for the disabled employees if they literally just sit down with them and just talk, ask them what needs they might have. We don’t bite honest!

Companies benefit from employing disabled people as we see things in a way that others don’t, we can see where the hazards are and how to deal with them quickly and safely.  Disabled people show true commitment to their employers and continue to do so every day as they are grateful for the opportunities they have been given but to be fair you should overlook their disability and employ them on their merits, as Amey did with me.

I asked a colleague of mine what it was that I brought to the company, she replied…’you, just you, I don’t see you as disabled’.

Have discussion groups say once a month to highlight if there are any problems that need addressing. Perhaps the disabled person to keep a log of things they struggle with, I know I have a problem carrying my laptop to which I did talk to my manager about, it was sorted immediately. Companies could also consider support groups of a variety of disabilities, Limbless Association for example.

Having a confidant helps me in my work place, someone I know I can talk to honestly and openly if I have a problem. Companies would benefit in training staff in how to recognise when someone is struggling as most disabled people are stubborn and will bottle their feeling up inside so they don’t want to cause a fuss.

As an Amey Scope Ambassador as part of the ‘End the Awkwardness’ campaign my role is to educate people on how to approach a disabled person and how to talk to them…quick tip…talk to them just the same as anyone else! 

If I can inspire just one person to achieve their goals by my life experiences then it’s all been worth it. Some people think they lose a limb that their life is over… it’s not, it’s the start of a brand new one… I don’t consider myself as disabled, I’m just Cath with a piece missing! (not necessarily my leg!).

Contributor: Catherine Cobb is a Traffic Signals Graduate Engineer at Amey.  Catherine is also an Amey Scope and Inclusion and Diversity Ambassador.

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Adjudication - evaluating your risk

Niall Lawless 

Chartered Arbitrator and Engineer, Adjudicator, Mediator

Before commencing adjudication, you should audit your adjudication risk. Risk audit is a process, which helps you make sensible commercial decisions. It highlights risks, their nature and scope, and allows you to determine how to prevent or reduce the risks.

One way to evaluate adjudication risk is to use a decision tree. Widely used in engineering, a decision tree can help you decide the dispute resolution strategy most likely to secure the best financial outcome for you. Graphical representation of risk helps you to make a reasoned assessment of the adjudication outcome, and allows you to compare that outcome to the costs you will incur in adjudication, and to any settlement offer. If you have suffered a loss of cash flow because of non-payment and invested in preparing a detailed claim, there will always be a maximum recovery amount. The maximum is the total of the quantum of all the items claimed without deductions. It is natural for senior management to focus on the maximum amount possible; this is the wrong approach. Experience shows that “independent experts” often provide different credible quantum calculations, seemingly underpinned by objective standards. The maximum amount is only ever an aspirational figure, and to imbue realism I recommend the use of a decision tree to calculate an “expected cash equivalent” (ECE). Competent mediators will use the decision tree method, or a variation of it, to help destabilise the parties and move them from entrenched positions.

In an adjudication concerning the modernisation and installation of lifts, the Referring Party said that it was entitled to additional money because of 17 variations. The Responding Party said that it was entitled to deduct money because of defective and incomplete work. Figure 1 shows how a decision tree can be used to chart the lifts dispute. The Referring Party said one variation was for Lift Builders Work, another variation was for dealing with Inherited Faults, etc. The Responding Party said that it wanted credit for Unfinished Items.

To grow the decision tree, each variation becomes a branch of the diagram, and determines the likely ECE based on statistical probability. Each branch of the decision tree represents a monetary decision event. The tree structure links the outcome of occurrences, and shows how one decision leads to the next. The use of branches indicates that each variation or deduction is mutually exclusive to another.

The efficient and normal way for an adjudicator to consider variations or deductions is first to decide liability and then to decide quantum. If the adjudicator decides that there is no liability, there is no need for him to look at quantum. However, for you, once the branches are in place it is easier to populate decision tree information starting with quantum and then moving to liability. In the lifts dispute the Lift Builders Work variation has a possible high valuation of £40,000 and a possible low valuation of £10,000. You assess that there is a 75% (0.75) probability that the adjudicator will decide the high valuation is correct, and there is a 25% (0.25) probability that the adjudicator will decide the low valuation is correct. Factoring the high and low valuation with their associated probability leads to a Net Quantum Outcome of £32,500. Often the decision tree has three sub- branches representing a high, medium and low valuation. Whatever number, it is essential that the probability of the branch events occurring always add to 100% (1.0).

 

 

 

 

 

 

 

 

 

 

 

Figure 1 Decision Tree in relation to the Lifts Dispute

To make the decision tree robust it is important to support each probability with reasons. Intuition is not a reason. Not preparing a full list of reasons makes the decision tree branches brittle, and is a common decision tree malady. If you identify the reasons why the adjudicator will decide that the low valuation is correct, you are identifying the scope and nature of the risks that you face. Risk is a measure of the probability and severity of adverse effects. As you may be able to do things to reduce the risks, change the risk consequences, or share the risk with another party such as a sub- contractor, there might be a sequence of linked dispute decision trees. Decision trees can be drafted using paper and pencil, by using a PC based spreadsheet such as Microsoft Excel, or proprietary low cost decision tree software. Using a spreadsheet or software makes it easy to update the decision tree quickly when there is new information that changes your assessment of branch risks or outcomes.

Linked to the Net Quantum Outcome is the likelihood of the adjudicator deciding that one party or the other has liability for the variation. You assess that there is an 80% (0.80) probability that the adjudicator will decide that the other party is liable for the Lift Builders Work variation, and a 20% (0.20) probability that you are liable. If the adjudicator decides that you are liable, you get nothing. Multiplying the probability 80% (0.8) that the other side is liable, by the Net Quantum Outcome, £32,500 gives the Lift Builders Work variation ECE of £26,000. Populating the Figure 1 decision tree with the Lift Builders Work and Inherited Faults variations, and the Unfinished Items deduction gives an ECE adjudication outcome of £37,000. This contrasts starkly with the maximum, amount possible £64,000.

Each party might spend £15,000 in claims consultants and lawyers’ fees to assist it. Except in very limited circumstances, in the UK a party’s costs in preparing for and participating in adjudication are not recoverable. However, the adjudicator could decide that you should pay all of his fees and expenses, or a percentage thereof. Based on the above, if the ECE adjudication outcome is £37,000, and your adjudication professional fees budget is £15,000, irrespective of whether you are risk- adverse or not, accepting an offer to settle for £22,500 makes sense. This would give you £500 more than the ECE, and you can invest your companies’ time pursuing other more profitable opportunities.

If you are adjudicating in a jurisdiction such as Malaysia, where the party’s costs in preparing for and participating in adjudication are recoverable, then not accepting an offer of £37,500 leads you to liability to pay the other parties’ costs, which if not taxed, could reduce your net recovery to £37,000- £15,000 = £22,000.

Contributor: Niall is Chair of the CIC Adjudicator Nominating Body Management Board. He is a Chartered Arbitrator, Building Services Engineer, Mechanical Engineer, Information Systems Engineer and Chartered Builder. He provides arbitration, adjudication and mediation services in commercial technology, engineering and construction disputes. https://www.linkedin.com/in/adjudicator

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Inclusive Environments: Learn more about the new British Standard

Julie Fleck OBE, MRTPI

British Standard Committee B/559 Member

A new British Standard has been published to help built environment professionals create an inclusive environment for everyone – this is not just a moral or social issue but a statutory duty

We learnt last summer of the stark reality that, despite years of antidiscrimination legislation, disabled people are still finding their lives needlessly restricted by features of the built environment. The Women and Equalities Committee Inquiry into Disability and the Built Environment reminded us all that inclusive design is not just a nice to do. All built environment professionals, through the critical role we play in planning, building and managing our towns and cities, have a statutory duty to ensure that disabled and older people have the same opportunities as non disabled people to live full and independent lives. We as must all respond by ensuring that we no longer allow barriers to inclusion to be designed built or maintained. 

Do you have the skills and knowledge to plan to include?

Do you have the technical knowhow to judge whether a development proposal will provide an inclusive environment or not? Do you know whether you overlook the critical detail that will make a building or place easy and comfortable to use?

We are getting better at assessing wheelchair accessibility, but do we really understand how to design buildings and spaces that are accessible and usable by blind and partially sighted people, or by people whose walking ability is limited or whose perception of space requires legible routes and predictable layouts. With the loss in many local authorities of the expert access officer on hand to ask, we all need to recognise what we don’t know and brush up on our technical skills.

A new British Standard

If you need to refresh your skills, the new British Standard, a revised and updated version of BS 8300:2010, provides an opportunity for you to gain a greater understanding of inclusive design and help you ensure that your development adequately addresses accessibility.

Published in January, the Code of Practice BS 8300:2018 Design of an accessible and inclusive built environment is divided into two parts. Part 1: External Environment explains how the external built environment, including streets, parks, landscaped areas, the approach to a building and the spaces between and around buildings, can be designed, built and managed to achieve an inclusive environment. It complements and is intended to be read in conjunction with Part 2: Buildings.

Advice given in Part 1 incorporates material relating to the external environment that was in the original BS 8300:2010 but it has been expanded to include wider aspects not previously included, such as lighting, assistance dog toilets, water features and public art. Advice is also given for specific locations such as access to beaches, play areas, parks and gardens, and nature trails.

Part 2 has updated and expanded the advice on nearly all aspects of the accessibility of buildings. Although the standard recognises that more research is needed before comprehensive advice can be given to address ‘Designs for the Mind’, the new code does include advice on, for example, quiet spaces. This includes when and what to provide in a dedicated room or space where people can find peace, calm and tranquillity in order to manage sensory / neurological processing needs or spend time in prayer or contemplation.

Integrating inclusive design principles into the development process

For the first time, the British Standard has included advice on how to integrate inclusive design principles into the development process. Recognising the importance of addressing access and inclusion from the outset of any project it recommends, in Section 4, the development of an Inclusive Design Strategy as part of any strategic vision, with the principles of inclusive design embedded into the initial concept brief. Budget estimates, procurement processes and development agreements should make explicit reference to meeting best practice, helping to establish the principles of an inclusive development prior to the drafting of master plans and outline designs.

This should make it easier for designers to demonstrate how access and inclusion has been addressed in the Design and Access Statement submitted at planning application stage. If the commitment to an inclusive development process has been championed by the developer from the outset, monitoring compliance with best practice standards throughout the construction phases should also be easier and more transparent.

The masterplan and outline planning stages provide the opportunity to address the accessibility of the site and building layout. Section 5 sets out guidance on site planning, the position of buildings and their features, navigation, orientation and way finding, the legibility of space, and the principles of two senses (audible / tactile and visual).

Early consideration of the impact topography and the location of buildings across the site, the position of entrances and other features and how they are arranged can help to maximise their accessibility.

If you want to hear more about the new BS 8300:2018 register here for the CIC Inclusive Environment Briefing February 22nd at the RICS Headquarters in London.

Use the advice and guidance in BS 8300: 2018 and help make inclusion the norm not the exception

Contributor: Julie Fleck OBE, MRTPI is the RTPI representative on British Standard Committee B/559 the committee responsible for the development of BS 8300. 

 

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Carillion Liquidation - Steps for Creditors

James Hutchinson

Partner

Beale & Company

A number of companies within the Carillion group have been placed in compulsory liquidation. The Official Receiver has been appointed as liquidator, with support from PwC. It has been confirmed that there is no prospect of any return to shareholders.

Given the size of Carillion, the UK’s second-biggest construction company, with 43,000 employees and contracts on a wide range of projects, including a number of flagship infrastructure projects, this will inevitably have a significant impact on the UK construction sector as a whole.

Official advice from PwC is:

Unless advised otherwise, all agents, subcontractors and suppliers should continue to work and provide goods and services as normal, under their existing contracts, terms and conditions. You will get paid for goods and services you supply from the date of the Official Receiver’s appointment onwards. Over the coming days we will review supplier contracts and we’ll contact you concerning these soon. Goods and services you supply during the liquidation will be paid for. A letter will be sent to suppliers shortly containing further instructions.”

Our view is that any firm that has exposure to a Carillion group company must carefully assess its position. PwC’s statement that “you will get paid for goods and services” only applies for work from today. A creditor might be in a better position if it were to terminate its contract (though this will depend on the termination provisions and its particular circumstances).

We suggest the following:

1. Immediately conduct an internal review of your exposure to Carillion, its subsidiaries and related joint ventures.

2. Collate all contractual documentation to enable you to review your legal options.

3. Be extremely cautious if asked to enter into a new contract with the liquidator:

(i) pay close attention to the contractual terms, and consider whether to enter into the contract at all;

(ii) seek to negotiate favourable terms around payment: ensure that the payment timeframe is short, that you have a right to suspend and terminate for non-payment, avoid granting the liquidator/Carillion the right to set-off your fees against amounts due under other contracts, and if supplying materials, incorporate an effective retention of title clause; and

(iii) avoid agreeing contractual novation provisions, or if these are incorporated, seek to incorporate a requirement for your consent to novation of the contract.

4. If already in a contract with Carillion, ensure that payment notices are served on time. This is essential for maintaining your contractual entitlement to payment. If you are not paid, consider whether you have a right to suspend for non-payment or under contractual insolvency provisions.

5. Keep a close eye on developments, as these may occur rapidly, PwC have set up a website, https://www.pwc.co.uk/carillion, and you should monitor this as well as the news.

6. Where collateral warranties are demanded by third parties on existing contracts where you are employed by Carillion, carefully consider whether you are obligated to grant these, as you may be able to resist providing them if you are not paid.

7. There may be an opportunity to renegotiate unfavourable contractual terms with the liquidator or if a new entity buys a part of the Carillion business with which you have contracted.

8. Depending on your contractual terms, consider whether you can suspend any intellectual property licences. This might put you in a strong negotiating position with the liquidator.

9. Consider whether there are any contracts that you may wish to ‘take over’ from Carillion; if so, approach the liquidator to discuss.

10. Where you have appointed sub-contractors on a Carillion project, make sure you review those terms and consider what action needs to be taken.

Contributor: James Hutchinson is a Partner at Beale & Company. If you have any queries in relation to the above, or any concerns in relation to the Carillion liquidation and issues arising out of it, please contact James on +44 (0) 20 7469 0408 or at j.hutchinson@beale-law.com.

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