Cash retentions have been used in the construction industry for decades as security against defects in the work but it is a payment practice that is vulnerable to both insolvency and abuse. The Scottish Government is to form a short-life working group to consider the policy options including the possibility of a retention deposit scheme, the phasing out of retentions completely or the viability of alternative mechanisms of assurance.
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Latest articles from Laura McCorquodale
One of the most disruptive court decisions for the Scottish construction sector in recent times was the controversial Court of Session decision in Midlothian Council v. Raeburn Drilling and Geotechnical Ltd which deals with the prescription of latent defects claims. Midlothian was questioned judicially in a recent Glasgow Sheriff Court decision with some positive news for those looking to raise such claims.
A six-phase plan has been drawn up for construction work to resume in Scotland as lockdown begins to ease from the end of this week but the road to full operation of construction works in Scotland looks likely to be a long one.
Why 'without prejudice' wording does not create a magical force field of legal protection around documents
There is an ongoing misconception that labelling any document 'without prejudice' creates a magical legal force field around it, making it inadmissible in any subsequent proceedings. A recent construction adjudication enforcement case illustrates why this is not the case and hints at how to use 'without prejudice' wording to give the best chance of protecting documents from being relied on in dispute resolution proceedings.
The latest Scottish court decision on a challenge to an adjudication award somewhat predictably saw the court enforcing the adjudicator's award. It is likely that future enforcement actions will be concluded in a much shorter timeframe than this one was.