Interpreting Contractual Rights to COVID-19 Remedies: An Analysis of Cases
Publication: Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 14, Issue 4
Abstract
The construction industry has been adversely impacted by the COVID-19 pandemic including significant delays on projects and outbreaks of COVID-19 on site. UK legal cases interpreting contractual rights to COVID-19 remedies are analyzed in this paper. The analysis of UK legal cases regarding potential contractual rights to COVID-19 remedies including change in law, force majeure, and frustration has revealed the barriers to recovery of losses. Instead, construction companies could consider focusing on more commonly used contract provisions, for example, extensions of time and prolongation claims or compensation events. The UK Supreme Court has ruled on the possibility of payment from business interruption insurance. Even the UK government has failed to comply with public procurement law under pressure of the COVID-19 pandemic. The High Court in London has ruled that landlords are entitled to recover rent and service charges owed to them by tenants whose businesses were mandated to close by coronavirus restrictions.
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Data Availability Statement
No data, models, or code were generated or used during the study.
References
List of Cases
Bank of New York Mellon (International) Limited v. Cine-UK Limited (“the First Claim”) and AEW UK REIT PLC v. Mecca Bingo Limited (“the Second Claim”) and AEW UK REIT PLC v. Sportsdirect.com Retail Limited (“the Third Claim”), (2021) EWHC 1013 (QB).
Commerz Real Investmentgesellschaft mbh v. TFS Stores Ltd., (2021) EWHC 863 (Ch).
Fibula Air Travel Srl v. Just-US Air Srl, (2020) EWHC 3048.
Good Law Project Ltd. & Ors, R. (On Application of) v. Secretary of State for Health and Social Care, (2021) EWHC 346 (Admin).
National Carriers v. Panalpina, (1981) AC 675.
Northern Ireland Housing Executive v. Healthy Buildings (Ireland) Ltd., (2017) NIQB 43.
Salam Air SAOC (Salam) v. Latam Airlines Group SA (Latam), (2020) EWHC 2414.
Saxby & Ors v. UDG Healthcare (UK) Holdings Ltd., (2021) EWHC 144 (Ch).
The Financial Conduct Authority & Ors v. Arch Insurance (UK) Ltd. & Ors, (2021) 2 WLR 123, (2021) UKSC.
Walter Lilley & Co. Ltd. v. Mackay, (2012) EWHC 1773 (TCC).
Westminster City Council v. Sports & Leisure Management Ltd., (2021) EWHC 98 (TCC).
Wood v. Capita Insurance Services Ltd., (2017) AC 1177.
2 Entertain Video Ltd. & Ors v. Sony DADC Europe Ltd., (2020) EWHC 972 (TCC).
List of Statutes
The Civil Procedure Rules 1998, SI 1998 No. 3132.
The Public Contracts Regulations 2015, SI 2015 No. 102.
Works Cited
Alsharef, A., S. Banerjee, S. Uddin, A. Albert, and E. Jaselskis. 2021. “Early impacts of the COVID-19 pandemic on the United States construction industry.” Int. J. Environ. Res. Public Health 18 (4): 1559. https://doi.org/10.3390/ijerph18041559.
Bushman, D., et al. 2021. “COVID-19 outbreaks at two construction sites—New York City, October–November 2020.” Supplement, Clin. Infect. Dis. 73 (S1): S81–S83. https://doi.org/10.1093/cid/ciab312.
Casady, C., and D. Baxter. 2020. “Pandemics, public-private partnerships (PPPs), and force majeure | COVID-19 expectations and implications.” Construct. Manage. Econ. 38 (12): 1077–1085. https://doi.org/10.1080/01446193.2020.1817516.
Charlson, J., and R. Dickson. 2021. “Covid-19 and construction law: Comparing the UK and Australian response.” Int. Constr. Law Rev. 38 (1): 5–38.
Hansen, S. 2020. “Does the COVID-19 outbreak constitute a force majeure event? A pandemic impact on construction contracts.” J. Civ. Eng. Forum 6 (1): 201–214. https://doi.org/10.22146/jcef.54997.
Pickavance, J. 2020. “A look beyond lockdown.” Int. Constr. Law Rev. 37 (4): 354–379.
Sierra, F. 2022. “COVID-19: Main challenges during construction stage.” Eng. Constr. Archit. Manage. 29 (4): 1817–1834. https://doi.org/10.1108/ECAM-09-2020-0719.
Information & Authors
Information
Published In
Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 14 • Issue 4 • November 2022
Copyright
© 2022 American Society of Civil Engineers.
History
Received: Jul 28, 2021
Accepted: Jan 20, 2022
Published online: Jun 25, 2022
Published in print: Nov 1, 2022
Discussion open until: Nov 25, 2022
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