News

AGS Magazine: February / March 2021

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Tags: Featured

The Association of Geotechnical and Geoenvironmental Specialists are pleased to announce the February / March 2021 issue of their publication; AGS Magazine. To view the magazine click here.

This free, publication focuses on geotechnics, engineering geology and geoenvironmental engineering as well as the work and achievements of the AGS.

There are a number of excellent articles in this issue including;
AGS Upcoming Webinars – Page 6
Inside: Beale & Co – Page 12
Ground Forum Mentoring Scheme – Page 18
Key considerations before winding down your company – Page 20
Q&A with Rachel Griffiths of Fugro – Page 28

Advertising opportunities are available within future issues of the publication. To view rates and opportunities please view our media pack by clicking HERE.

If you have a news story, article, case study or event which you’d like to tell our editorial team about please email ags@ags.org.uk. Articles should act as opinion pieces and not directly advertise a company. Please note that the publication of editorial and advertising content is subject to the discretion of the editorial board.

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Improving Company Performance Through Equality, Diversity and Inclusion Webinar Summary

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Tags: Featured

On 26th February 2021, the AGS held their second webinar on the subject of equality, diversity and inclusion (EDI), in association with the Ground Forum and Federation of Piling Specialists.

EDI is often spoken about at strategic, policy and procedural level but how can these be developed to raise awareness and influence positive actions within the geotechnical and geoenvironmental sector? Improving Company Performance through Equality, Diversity and Inclusion, focused on how our industry can start to address inequalities and promote diversity and inclusion, and discussed the barriers as well as positive approaches and initiatives to EDI, which will help change attitudes, attract new talent and improve retention within the industry moving forward.

234 delegates registered for the webinar from countries including USA, Hong Kong, Jamaica, Spain, Latvia, India, Pakistan, Australia, Switzerland and Poland. The event discussed the industry challenges and introduced potential solutions for companies to eliminate discrimination, create equal opportunities and develop good working relationships between different people.

Speakers for the event included Emma Stewart MBE (co-founder of Timewise), Sharon Slinger (Director at Constructing Rainbows Ltd.), Steve Hadley (FPS Chair and Managing Director of Central Piling) and Martin Griffin (Principal Geotechnical Engineer). The event was Chaired by Sally Hudson (AGS Chair Elect and Regional Manager at Coffey Geotechnics Limited, A Tetra Tech Company) and Julian Lovell (AGS Chair and Managing Director at Equipe Group).

If you missed this webinar, the replay is now live and available for free view on the AGS website. Click HERE to view the replay and download the speaker presentations and file handouts.

Article Loss Prevention

Loss Prevention Webinar Series: Commercial Risks and How to Manage Them

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On 27th January and 3rd February 2021, the AGS Loss Prevention Working Group hosted their first webinar series entitled Commercial Risks and How to Manage Them. Both events were sponsored by legal specialists, Beale & Co.

This two-part series, was chaired by Jo Strange, (Technical Director at CGL), and saw six specialist speakers presenting across two webinars; Basic Contractual Risk Mitigation and Limiting Particular Liabilities. Event speakers included; Dr Russell Jones, (Principal / Senior Legal Consultant, Golder Associates), Hugh Mallett, (Technical Director, Buro Happold), Charles Hayward, (Associate Director, Griffiths & Armour), Zita Mansi, (Senior Associate, Beale & Company), Rachel Griffiths, (Contracts Manager, Fugro) and Joe Jackson, (Managing Director, Jackson Remediation).

Over 325 delegates registered for the webinar which looked at topics including; the battle of the forms, the importance of definitions when agreeing scope and objectives, how to avoid professional indemnity claims, the critical difference between “fitness for purpose” and “due care and diligence”, Collateral Warranties, “letters of reliance” and the assignment of reports and historical contractual arrangements and how they have evolved.

If you missed this webinar, the recording is now live and can be purchased from £25 per session via the AGS website by clicking HERE or HERE.

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Q&A with Rachel Griffiths

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Tags: Featured

Full Name: Rachel Griffiths
Job Title: Contracts and Legal Manager
Company: Fugro

I started my career in 1988 as a maritime engineer in design offices and on construction sites in the UK and the Middle East but soon found that I enjoyed the commercial and contractual aspects more than the technical ones. Once I became a chartered engineer, I moved into contracts full time. I completed my law degree while working as a contract specialist focusing on construction and consultancy contracts. I joined Fugro in 2013 as legal and contracts adviser for land and marine projects and found that I needed to expand my knowledge to cover ground investigation contracts, so I completed a master’s in oil and gas law and wrote my thesis on offshore wind contracts. As part of Fugro’s European legal team, I now advise Fugro on legal and contractual matters regarding onshore and offshore ground investigations in the UK, Europe and Africa.

What or who inspired you to join the geotechnical industry?
I came to the geotechnical industry from the wider onshore construction world, but what attracted me to Fugro was the range of challenges in the offshore work. Whilst I well understood the risks and challenges of ground investigation and construction onshore, undertaking ground investigations offshore is another level of complexity. The constraints of vessels and resources, and the impact of weather, currents and water depths must be addressed in addition to the usual onshore risks of access and ground conditions. Every day is interesting and challenging.

What does a typical day entail?
At the moment, a lot of sitting at home in my study, attending MS Teams meetings! As a legal adviser, my role is primarily risk mitigation. This involves advising the Fugro business on commercial contracts with clients, partners, subcontractors and suppliers, both before and after they are signed. As well as having to read a lot of documents, my role involves many internal and external meetings, where I advise the business, negotiate contracts and deal with ongoing client matters. Before lockdown, I often travelled within the UK and Europe to other Fugro and client offices for face-to-face meetings, but now I’m purely home-based. The downside of this new way of working is that tasks are very condensed and sometimes now I attend multiple client meetings a day with little time in between, which squeezes preparation time.

Are there any projects which you’re particularly proud to have been a part of?
In recent years, Fugro’s offshore business has diversified away from oil and gas to supporting the offshore wind industry. During my eight years at Fugro, I’ve worked on contracts with many renewable clients through our ground investigations and surveys for wind farms. This new industry has required new contracts and contracting practices and I am proud of the way that the industry has responded to develop contracts to balance and allocate the risks involved. It is satisfying to see that some of the wind farms where I advised on the contracts for Fugro’s early ground investigations are now being constructed. It is nice to see that the process produces tangible results in the form of renewable energy projects.

What are the most challenging aspects of your role?
As Fugro covers such a range of work, including geotechnical and geophysical investigations for offshore and onshore work supporting major infrastructure projects, as well as marine construction, metocean and consultancy services, the main challenge is dealing with the different contracts, risks and issues that arise across such a diverse workload. This often means jumping from one thing to another, but the upside is that it is never boring.

What AGS Working Group(s) are you a Member of and what are your current focuses?
I am a member of the Loss Prevention Working Group (LPWG). This parallels my role in Fugro, as it is focused on risk mitigation. The LPWG’s role is to advise members on matters related to the risk that may affect the work they do, and balance the contractual risk fairly between clients and contractors and consultants. To do this, we keep abreast of current issues that affect our industry, including legislation, case law and the publication of new codes and standards, in addition to sharing our own experiences as industry professionals. We then provide advice and support to the AGS through published guidance and alerts, magazine articles and, more recently, through our seminars and webinars on risk mitigation.

What do you enjoy most about being an AGS Member?
I enjoy the discussions at the LPWG meetings, as the group has a range of members from around the geotechnical industry, representing clients, contractors, and consultants ranging from individual specialists to large companies, and also the lawyers and insurers who provide vital support. This cross section of perspectives means we have lively discussions which we can then consolidate into useful guidance, which we publish to help our colleagues across the AGS.

What do you find beneficial about being an AGS Member?
In my role as Fugro’s legal adviser, I find the publications and papers provided by the LPWG on commercial risk mitigation issues helpful as they provide a good resource for guidance on the risks and concerns which affect professionals working in the industry. Sharing these papers with my colleagues helps provide a firm understanding of commercial risks and how to address them. These resources are mirrored by similar resources which are provided by other groups within the AGS to support members in other professional and technical aspects of their business, and I think the industry as a whole benefits from this pooling of knowledge and sharing of expertise.

Why do you feel the AGS is important to the industry?
I think the AGS helps at all levels because both experienced practitioners and young professionals benefit from the range of resources and support provided by the AGS. Young geotechnical and environmental engineers and other specialists should be encouraged by employers such as Fugro to seek out and use the guidance available as it is certainly helps their careers. In addition, experienced professionals who come across a new issue where they need guidance or reassurance can similarly benefit. The chances are that someone else has encountered and overcome the same issue before and help is available.

What changes would you like to see implemented in the geotechnical industry?
With my focus on contractual matters, particularly for onshore infrastructure work, I would like to see more development on the production of bespoke contracts that recognise that geotechnical ground investigations and reporting are somewhere between “Works” and “Services”. Obviously the ICC Ground Investigation conditions are developed for this purpose but, increasingly often, UK onshore clients or their advisers seek to adapt other forms of contract designed for consultancy or construction to use on ground investigations. The problem with this is that the risks are quite different and therefore not properly addressed in these other standard contracts. This effectively forces the parties to negotiate their positions on the key risks from scratch on every project, which takes time and energy that could be better spent elsewhere. I would like to see more consensus across the industry to address this issue.

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Ground Forum Mentoring Scheme

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Mentoring for Greater Diversity; Ground Forum, FPS and AGS Take the First Steps

Joint article between Steve Hadley, Chair of FPS and Neil Parry, Chair of Ground Forum and AGS past Chair

Few would argue that a diverse workforce is one which brings many benefits to a business, providing a fresh outlook, expressing different ideas and showing new ways of thinking. Diversity also reflects society in general and can provide significant value to a business. Promotion of a diverse and capable workforce is an important corporate responsibility for a modern progressive company. The recent AGS webinar: Improving Company Performance through Equality, Diversity and Inclusion discussed the need to eliminate discrimination, create equal opportunities and develop good working relationships between different people.

Statistics tend to vary but Engineering UK’s figures from its ‘Gender disparity in engineering’, brief highlighted that just 12% of those working in engineering are women. The 2019 fourth quarter ONS’s Labour Force Survey showed that just 5.4% of construction workers were BAME and may be as low as 2%. It is likely that the ground engineering sector is similarly unrepresentative.

The Federation of Piling Specialists (FPS) played a key part in the establishment of a Mentoring Scheme, which is now being taken forward by Ground Forum (GF); bringing together the representation of related societies and other trade associations, including the FPS and AGS. The scheme is designed specifically to support the goal of increasing the number of currently underrepresented groups within the construction sector, as well as retain those already within it. Mentors have been taken from all sectors of the industry that feel passionate about construction and who are able to offer a real-world and positive personal perspective on the geotechnical sector.

Working with experienced ground engineering representatives such as Ebenezer Adenmosun, director of Geofirma and an active mentor of engineers, typical mentees were identified as students at university that have expressed an interest in the sector; early career persons, such as graduates looking to get chartered but lack the necessary guidance and support within their organisations; experienced persons who would benefit from a little encouragement to re-capture their interest; and site operatives looking for more general support.

In November 2020, more than 60 Mentees and Mentors met virtually to kick off the GF scheme. This was extremely successful at connecting the first ‘batch’ of students, from a broad range of Universities with ground engineering industry professionals. Universities that have signed up so far include Portsmouth, Loughborough, Bradford, Leeds, Brunel, Hertfordshire and Bath. Students have included those studying Batchelors qualifications in Civil Engineering, Geology, Structural Engineering and Geotechnical Engineering, from 1st year to postgraduates.

This is just the start of the initiative, with the aim of the programme having multiple threads and looking to engage with a wider spread of mentees in the longer term. The first step was designed to enable students to feel confident in their career choices, strengthen their employability skills and enabling them to be connected to a network of future drivers for change. Importantly, it will also help mentees find their part in multidisciplinary teams at project, programme, and portfolio levels, which is essential if they are to establish themselves within the industry.

Mentees will also be able to undertake work experience during their studies, which will give them a flavour of real-world working and integrates well into the whole mentoring concept. With the support of many companies, the work experience opportunities will take place in the Spring.

Mentees had their first meetings with their mentors before Christmas, where they established a framework and programme going forward, with planned feedback shaping the direction of the scheme. A feedback session from the mentors has led to them revealing some really positive stories, including how the mentors have enjoyed the experience of coaching the students.

Future initiatives that are being enabled include:
• Setting up an online group to share information, such as relevant CPD events, with the mentees.
• Using the extended network of the group to provide work experience opportunities.
• Arranging site visits, interviews and CV workshops.

Significant funding and offers of continued financial support have already been made from members of the Ground Forum including FPS, AGS, BDA, BGA and the PJA. These organisations will also be involved in the network of support and promotion of the scheme.

Although it is still early days in the scheme’s running, it is encouraging to note that it has been heavily oversubscribed, which supports the theory that there is plenty of interest in the sector. The mentors have the significant challenge ahead of them of supporting the enthusiasm that the scheme has generated, a task that they are glad to step up to. Other representative bodies have also expressed their interest in following Ground Forum’s lead in setting up similar schemes.

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Inside Beale & Co

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Name: Sheena Sood
Job title: Senior Partner
Company name: Beale & co

• What does the company do and what areas does it specialise in?
Beale & Co is an International Construction and Insurance Law Specialist. We have been providing specialist legal advice to the construction, engineering and infrastructure sector for over 50 years and are recognised leaders in the legal directories. Our lawyers understand and advise on all aspects of the construction process from beginning to end, drafting standard conditions of contract and bespoke contracts, providing assistance with tenders and contract reviews, giving practical advice on issues that arise during the life of a project, and dispute avoidance and resolution advice should things go wrong. Working with construction professionals and their insurers we offer cost-effective advice focused on finding solutions to difficult problems. Our lawyers have advised construction professionals on some of the most prestigious projects both at home and abroad including the Battersea Power Station, HS2, Crossrail, or the M25 in the UK; wind farm and motorway projects in Ireland; the Metro 2020 in Dubai, Abu Dhabi International Airport, Bangkok Airport and the Sual Power Station in the Philippines.

• Where is Beale & Co located?
We have offices in London, Bristol, Dublin and Dubai.

• How many people does the company employ?
We have over 90 lawyers working across the four offices and employ over 160 staff in total.

• How long have you worked at Beale & Co?
After completing my law degree with Brunel University I started my training contract (called articles in those days!) with Beale & Co in 1990, qualifying in 1992. I have stayed at the firm since qualification and so have been working at Beale & Co for over 30 years now.

• What is your career background, and what enticed you to work for Beale & Co?
My law degree at Brunel University was a thin sandwich LLB course and involved working in industry for 3 summers out of the 4 years of the course. The first industry experience I gained was working within the legal department of the London Borough of Hounslow for 6 months. Working with its dedicated lawyers on child protection issues was eye opening. I then sought to obtain experience in a private practice law firm which I discovered was difficult, especially with no links to the legal industry. I wrote letters to a number of different firms requesting work experience placements. Of the letters I wrote, two law firms responded, one of which was Beale & Co which then offered me a placement. During this placement and subsequent placements with them, I worked closely with Antony Smith on contentious construction work, gaining great experience. This is where I gained an avid interest in the construction industry. I particularly enjoyed helping clients to get disputes solved and the ‘highs and lows’ of litigation. Mainly the highs! The skills required go beyond pure legal knowledge.

• What is your current role within Beale & Co and what does a typical day entail?
I am the Senior Partner of Beale & Co. My role involves advising clients on a diverse range of professional negligence claims and contractual disputes, advising engineers, architects, contractors, health and safety professionals and surveyors. I work across all sectors of the construction industry and really enjoy getting to grips with the different issues of importance.

Another significant part of my role involves working alongside colleagues in the leadership team in leading the strategy and direction of the firm and management of various issues internally. I have an external facing role representing the firm with a significant part of my time spent on business development. I also contribute regularly to trade press including authoring articles and thought leadership pieces for Building magazine and Infrastructure Intelligence.

As a partner led firm I am closely involved with all of my cases and a typical day will involve work on client matters, liaison with team members working on those cases, business development and internal management and administration.

• What are the company’s core values?
At Beale & Co, we are interested in doing a good job, well. For us that involves thinking holistically about people, having the highest standards, and achieving the best possible sustainable outcomes for all. Our values drive every aspect of what we do as a business, from how we treat our clients and colleagues to how we treat the community and the environment around us. Our core values are:

People matter – one team, one firm.
We believe in a ‘one team, one firm’ approach which prioritises respect for people and their contributions. We foster an inclusive environment where we can be authentic with each other and our clients. Above all we value each other’s mental and physical health and well-being. We have a strong ethos and commitment to collaboration and teamwork founded on listening and action.

Straight and honourable dealing
We value and operate with openness in all our dealings. We aim for the highest possible standards of integrity and fairness as an employer and provider of legal services.

Best possible outcomes
We value hard work, innovation and sustainability. We continually seek to be the best we possibly can be for our people, our clients and our community.

• Are there any projects or achievements which Beale & Co are particularly proud to have been a part of?
I’m proud to say that, in recent years, Beale & Co has advised on numerous high-profile projects and disputes in the UK and internationally including signature buildings in the City of London, Baku sports stadium in Azerbaijan, HS2, Crossrail, Dubai 2020 to name a few.

• How important is sustainability within the company?
Sustainability is hugely important to us. Sustainable business has at its heart the understanding that the success of a business relies intrinsically on doing what is best for the environment, clients, employees, communities and all other stakeholders. Writing this during the Covid-19 pandemic I am struck by how true this is.

Companies around the world are facing growing pressure to become more socially and environmentally responsible. As a firm, we believe that we should do more than simply acknowledge the importance of doing the right thing but also strive to deliver value to everyone connected directly or indirectly to our business.

Our strategy for delivering sustainable business is based on ‘Four Pillars’ which form the foundation of our approach to being a responsible business.

Our ‘Four Pillars’ are:

Community: We recognise that the way we deal with our stakeholder clients, employees and suppliers has a huge impact on the communities in which we operate and goes far wider than the simple delivery of legal services.

Employees: Our people are our most valuable asset and we are committed to nurturing a working environment that our people can say they are both proud of, and can relate to.

Environment: Any sustainable future needs to consider environmental impact

Marketplace: We run our business with integrity and we are proud of that. We are committed to sustainable and socially responsible business practise, and we expect the same standards from all those we work with.

While we are a relatively small firm of approximately 160 staff in total, we aim to instil a culture of sustainable business in all of our Partners and employees to be a force for good, focusing on these four key pillars; Community, Employees, Environment, and Marketplace.

We are evolving as a firm, just as our four pillars are evolving, and there is more that we want to do. We are reviewing whether or not we might sign up to the UN Sustainable Development Goals, and we look forward to sharing our progress in the future.

• How does Beale & Co support graduates and early career professionals who are entering the industry?
We aim to take on up to seven trainee solicitors across our offices each year, providing them with the first-class legal experience and business skills they will need to succeed as a lawyer. Trainees work alongside our partners in the fields of construction (UK and international), insurance and corporate/commercial. From the start of the training programme we give them a hands-on role and they are a real part of the team providing the quality service upon which we have built our reputation. We value our trainees and their contribution and give them opportunities to build relationships with clients and take responsibility for their own matters. We offer our trainees and newly qualified solicitors an extensive programme of internal training and CPD on a number of topics both legal and commercial to assist with their career development.

Not only do we provide training to our own staff but we believe in the importance of providing training to our clients and regularly run CPD events to assist with development of legal knowledge and risk management capabilities within their legal teams.

• How has COVID- 19 affected the day to day running of the company? How have staff adapted?
As a firm we have responded very well to the changes brought on by the pandemic. Fortunately, we trialled remote working across the firm a week before lockdown so the transfer to working from home for us was fairly smooth and we are pleased to say that we have suffered few if any adverse reactions to the new circumstances. Staff have adapted well to the new way of working. We have rolled out software across the firm to enable colleagues to communicate and collaborate via online meetings which has been vital to maintaining our productivity during the pandemic.

What became apparent to everyone at the start of the first lockdown was the potential impact on the mental wellbeing of staff in all forms of business. Not only have people needed to adapt to a new way of working but they have also needed to adapt to a new way of living which in some cases has left people at danger of feeling isolated and anxious. In order to promote the importance of mental health and mental wellbeing internally we have developed a number of initiatives, classes and workshops through our ‘Wellness Teams’ across each of our offices. Our aim is to encourage openness, team bonding, creativity, the development of new skills, physical health and hobbies. Examples of these include social coffee mornings, Spanish classes, yoga sessions, book clubs, cookery and art classes and magic and comedy nights.

• Why do you feel the AGS is important to the industry?
Trade associations such as the AGS are vital for the improvement of quality, health and safety, environmental practices and technical standards. Through networking, training and education and the provision of industry expertise to policy makers the AGS strives to improve the profile and standards of the geotechnical and geoenvironmental engineering industry.

• What are Beale & Co’s future ambitions?
To maintain our specialist focus, to maintain our independence, to continue to develop high quality lawyers to undertake high quality works for its clients.

Beale and Co were Diamond sponsors of the AGS’ Loss Prevention webinar series; Commercial Risks and How to Manage Them; Basic Contractual Risk Mitigation and Limited Particular Liabilities.

Recordings of the webinars are available for purchase on HERE and HERE from £25 per series.

Article Loss Prevention

Waiver of Subrogation – What does it mean and can it be a problem?

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The AGS Glossary of Useful Professional Indemnity Insurance Phrases defines subrogation as follows:

“Under the terms of the insurance contract an insurer has the right to recover any applicable loss (in whole or in part) from any third party against whom the insured enjoys rights of recovery. In the context of Professional Indemnity insurance this might refer to a right of action against a sub-consultant whose negligence caused his principal’s insurers to pay a claim to the principal’s client”

It is noted in the same document that an insurance company generally has the right to subrogate (or take legal action against). When a Waiver of Subrogation clause is present in a contract or required by a client/employer, the intention is that subrogation rights of the insurer are waived and the insurer is unable to take legal action and recover damages against the third party responsible for the loss.

A waiver of subrogation rights is included in some standard contract forms, such as the NEC3 and NEC4 Engineering and Construction Contract.  An insured party must not enter into an agreement with any third party that will prevent the Insurer recovering any applicable loss.  It is therefore important that they either remove any waiver clauses or confirm with their insurers that the waiver will not affect their cover on a contract.

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Key considerations before winding down your company

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Article drafted by James Hutchinson and Sophie-Rose Bowen from Beale & Co.

This article will consider the following:

1. Matters to consider before closing down your company;

2. Obligations to ensure that your company is insured once it has ceased trading; and

3. Why it is important to protect your company against future claims that arise once your company has ceased trading.

1. Matters to consider before closing down your company

Procedure

In terms of how to wind down your company, there are various methods available. For the purposes of this article, we will assume the company is solvent at the time of closure.

Strike-off

You may choose to voluntarily strike your firm off the Companies Register maintained by Companies House register using the method known as “voluntary strike-off” (in accordance with section 1003 of the Companies Act 2006). Note that you will need to distribute all cash and assets in the company before the company is dissolved as otherwise such assets will vest bona vacantia i.e. belong to the Crown.

This method of dissolution is often an attractive procedure as it is relatively quick, straightforward and cost-effective. Once a company is struck off the register it is deemed to be dissolved and there is no longer a legal entity (and therefore there is no one to sue).

However, note that despite the company’s strike-off and dissolution, future claimants can apply to restore the company to the register at any time, if they have claims against the company.

Although a company does not have to formally discharge all of its liabilities before it is struck off, it must however notify all contingent and prospective creditors (which would include a party to whom an existing obligation is owed but in respect of which a present liability has not arisen and may never arise e.g. a potential claim). Note that failure to inform such creditors would constitute an offence under the Companies Act 2006. It will be an aggravated offence punishable by a term of imprisonment if the person’s failure to perform this duty is with the intention of concealing the application.

Solvent liquidation

Another method of dissolution is via voluntary liquidation, which is the costliest procedure. There are two main types of liquidation – creditors’ voluntary liquidation (CVL) and members’ voluntary liquidation (MVL). A CVL is entered into when a company is insolvent (which we will not be discussing in this article) and an MVL is entered into when a company is solvent.

To initiate an MVL, you must make a Declaration of Solvency (for English and Welsh companies). You will need to review your company’s assets and liabilities before making a declaration.

To make a declaration of solvency you must produce a written statement stating that the directors have assessed the company and that they believe it can pay its debts in full together with any interest within a specified period, not exceeding 12 months from the commencement of the winding up of the company (pursuant to section 89 of the Insolvency Act 1986 and the Insolvency (England and Wales) Rules 2016). You will also need to include the statement of your company’s assets and liabilities. Once this has been confirmed, a shareholders’/members’ meeting is convened to appoint a liquidator to wind down your company.

It is important when making a statutory declaration of solvency that the directors assess the actual and contingent liabilities of your company (including pending or potential claims) and have reasonable grounds for the opinion that your company would be able to pay its debts in full within the period specified in the declaration (which must not exceed 12 months from the commencement of liquidation).
Should a declaration of solvency be made falsely or if it is found to be inaccurate the repercussions for the directors can be very severe, including an unlimited fine and up to 2 years imprisonment. It is therefore prudent to ensure that the company holds adequate professional indemnity insurance to capture any potential liabilities that arise in the period specified in the declaration of solvency.

How can I protect my company against future claims?

Ensuring that there is adequate insurance in place to protect the interests of yourself and your company against the possibility of future claims is a key consideration to be had before winding down your company.

It is possible to take out professional indemnity insurance to provide protection against claims that are made once a company has stopped trading. This is called run-off cover.

Run-off cover is important as professional indemnity insurance is provided on a claims made basis. This means that if a claim is made against your company and you want cover to be provided, professional indemnity insurance needs to be held on the date the claim is made against your company, rather than the date of the incident giving rise to the claim.

2. Obligations to ensure that your company is insured once it has ceased trading

In considering whether to take out professional indemnity insurance run-off cover, it is important to consider your company’s contractual and professional obligations:

i. Contracts may contain contractual obligations to maintain insurance for 6 or 12 years from completion of the services or practical completion. Therefore, it would be prudent to ensure professional indemnity run-off cover is in place until these periods have expired.

ii. In addition to your contractual obligations, you may also have professional obligations to maintain run-off cover, as a member of your professional body.

In the past, Courts have allowed claims to be brought against a professional in their personal capacity in the absence of professional indemnity insurance. If you enter into a contract knowing that you will be closing down your company and that you will not have run-off cover in place, then you risk a potential claimant bringing a personal claim against you (see the decision in Merrett v Babb).

3. Why it is important to protect your company against future claims that arise once it has ceased trading?

Contractual liabilities

Given the nature of construction-related projects, your company may have contractual liabilities that last for a number of years.

If any of the contracts entered into by your company have been executed as simple contracts under hand, then your contractual liabilities under that contract should last for 6 years from the date that any cause of action accrued i.e. there was a breach of contract. If your contract has been executed and delivered as a deed, then your contractual liabilities under this contract could last for 12 years from the date of breach of contract.

Alternatively, some contracts may incorporate bespoke limitation clauses which seek to limit the period of time in which a party can bring a contractual claim against your company. Examples would be clauses limiting your company’s liability to 10 years from the date the practical completion or from the date of completion of your services.

Following the judgment in Inframatrix Investments v Dean Construction, the Courts will try to give effect to bespoke contractual limitation provisions provided that they are clearly worded.

Before winding down your company, it is important to take a look at the contracts entered into by your company to determine how long professional indemnity run-off cover ought to be required.

Latent defects

Latent defects are a common problem in the construction industry. A latent defect is one that appears after a project has been completed and that is not discoverable at the time of its completion.

A claim in tort can take advantage of an elongated limitation period under section 14A of the Limitation Act 1980 which allows a claim in tort to be brought within 3 years of the date when the claimant had the ‘knowledge’ required to bring such an action and the right to bring such an action up to a maximum of 15 years from the date of damage.

As professional indemnity insurance is provided on a claims made basis, where a latent defect is discovered several years after completion of the project and a claim is made against your company, the professional indemnity insurers on risk at the time of the discovery of the defect will need to be notified, as opposed to the professional indemnity insurers on risk at the time the cause of action accrued i.e. when there was a breach of duty.

It is important to ensure that there is adequate run-off cover in place following the closure of your company because a latent defect may only be discovered several years after practical completion, at a time where your company has ceased trading. This is especially so where the client has not taken out a latent defects insurance policy for the project.

“Contribution” Claims

In addition to claims in contract and tort, it is possible for a defendant party to issue a “contribution” claim under the Civil Liability (Contribution) Act 1978 (the 1978 Act) against any other parties involved in a project that also contributed to the alleged damage. Contribution claims are particularly common in construction disputes where parties are jointly and severally liable to the client. In those circumstances, a client would be able to bring a claim against only one of the parties it considers to be responsible for the damage, leaving the defendant party to recoup its losses from the other “contributing” parties by pursuing claims under the 1978 Act.

A claim under the 1978 Act can be brought up to two years after the right to contribution accrues, which is the date on which the liability of the original defendant is quantified either by settlement agreement or judgment. A party shall be entitled to recover contribution under the 1978 Act notwithstanding that they have ceased to be liable in respect of the damage in question since the time when the damage occurred. Therefore, the fact that any contractual or tortious claim against your company is now statute-barred would not prevent a party from being able to bring a “contribution” claim against your company, provided that this is done within the prescribed two-year period under the 1978 Act.

It is pivotal to consider the possibility of “contribution” claims arising on particular projects when considering professional indemnity run-off cover to suit your company.

Key Take Away Points

If you are considering closing your company, we recommend that you give careful consideration to your continuing contractual and professional obligations, the potential for claims to arise as a result of latent defects and the potential for “contribution claims”. It is prudent to maintain appropriate run-off cover, to ensure that you can meet any future contractual liabilities and also that you comply with the obligations of your professional body. By choosing not to purchase run-off cover once you have ceased trading, you will lose any benefit of having had any insurance in the past. You will therefore not be insured for any claims that may arise out of your past work, even if you had professional indemnity insurance at the time you provided the services.

Whether you choose voluntary strike-off or an MVL, you will need to consider any actual and contingent liabilities (and again maintain adequate run-off insurance cover).

We appreciate that many engineers are finding it difficult to purchase run-off cover at an affordable price and on a basis which does not require annual renewal, leaving the risk that it might not be available in the future. It is therefore essential that you speak to your insurance broker about what options are available. You should also seek financial advice from an accountant/insolvency practitioner about what closure process is most appropriate and take legal advice on any potential liabilities and obligations your company may have.

Should you have any queries or are seeking advice on the matters raised in this article, please do not hesitate to contact James Hutchinson (J.Hutchinson@beale-law.com) or Sophie-Rose Bowen (S.Bowen@beale-law.com).
James Hutchinson
Sophie-Rose Bowen

Article

Land Contamination and Development – Guidance from Scottish Regulators

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Article provided by Sarah Hamill, Contaminated land Officer, West Dunbartonshire Council

It is common knowledge that the UK’s industrial history has left us with a legacy of sites with land contamination issues. Everyone is keen to see this legacy dealt with and so the opportunities that development and regeneration of these sites provide are welcomed. Even during these difficult times we are fortunate to still see development and regeneration sites coming forward however with this comes a wide range of reports. As a regulator we receive reports ranging from The Good, to the Bad and even to the Ugly, and there is nothing that frustrates us more than when we receive sub standard reports which fail to address the main issues of addressing land contamination.

Improving the quality of reports relating to land contamination is a popular topic across the contaminated land community and was the subject of a virtual panel discussion hosted by Environment Analyst on 19th January and also a roundtable discussion at the recent Brownfield Land Scotland Virtual Conference (2nd-3rd February). There were several suggestions on how we could ‘raise the bar’ but the one theme that carried through was that as a community (regulators, consultants, contractors) we all have a role to play to educate the developers of what is required. It is evident that many developers do not fully appreciate the importance of dealing with issues from the ground up and so the ground investigation (especially the assessment of the environmental risks) is often an after thought. This can mean that by the time the ground is suitably investigated the design and layout of the development has been decided and so the measures required to deal with what is found can often disrupt the proposals and programme.

As a community we have a responsibility to better engage and inform developers. Pre-application discussions are a good way to do this as this can mean that the ground conditions are considered and sometimes even addressed at an early stage. However, while we may be seeing an increase in pre-application discussions the majority of these are for large scale developments. We therefore have a responsibility to ensure that small scale developers also understand what may be required so that they can assess the potential implications of this to their project. To be faced with numerous conditions at the planning stage may be overwhelming especially when they did not even consider it as an issue.

To try and resolve this, Scottish regulators produced a guidance for developers booklet that was published in 2010. The purpose of this was to highlight the key issues that need to be considered when embarking on projects where land contamination may be an issue as well as highlighting the standards expected by Scottish Local Authorities. The problem with this was that it was a snapshot of guidance at that time with no one organisation taking ownership of it. A revised version was then published in 2019 after a major overhaul of the content as it was felt that a more detailed piece of guidance was necessary including more information on what is, and more importantly, what is not accepted. This time however we were fortunate to be able to do this under the remit of Environmental Protection Scotland (EPS) meaning that the most up-to date version could be made available on their website so that any changes and updates could be easily made.

https://www.ep-scotland.org.uk/wp-content/uploads/2019/09/ConLanDevGuide_12-Aug19-FINAL.pdf

While the original document was titled ‘Guidance for Developers’ this updated version has been written to also benefit local authority officers, consultants and contractors when preparing and/or reviewing site investigations, risk assessments, remediation strategies/schemes and verification plans/reports. This document is recognised and used by the majority of Scottish Local Authorities and is also endorsed by both SEPA (Scottish Environment Protection Agency) and REHIS (Royal Environmental Health Institute of Scotland). To ensure developers are aware of it many authorities ask that it is included in the Planning packs that is sent out with other planning information. EPS had scheduled a launch day for May last year where developers were invited to attend, however the COVID lockdown resulted in this being delayed. It is however still their intention to run this as, possibly as a ‘virtual’ webinar event. In the meantime we would appreciate if everyone could help to promote this document and encourage developers to take cognisance of this especially when working in Scotland.

As is known there are some differences on how land contamination issues are assessed across the nations (in particular in relation to the water environment) and so this guidance has been written specifically for Scotland. In saying that there are also key issues discussed that apply across the UK (e.g verification) and so this document may act as a useful reference for all. Feedback on this document is welcomed and so if after reading it you have any comments then please do email them into admin@ep-scotland.org.uk under the subject title ‘Land Contamination and Development’ so that this can then be forwarded onto members of the steering group.

Article Report Laboratories

AGS Laboratories Working Group – Update

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Will Fardon, who is the new Leader of the AGS Laboratories Working Group, has provided an update on the top issues the Laboratories Working Group discussed at a recent meeting which took place virtually in January 2021.

New Working Group Leader
Will Fardon has recently taken over as Laboratories Working Group Leader. Will is currently the Technical Sales and Training Manager for i2 Analytical and Will’s background is predominantly within the environmental chemistry and lab testing industry.

As the new Leader of the Labs WG, Will hopes to build on the work done within the group in recent years and expand the discussions on a broad range of subjects across the full selection of analytical areas that contribute within the industry, and also help expand the reach of the group to a new and wider audience.

Sample Qualities / Quantities
A document on sample qualities and quantities is being finalised by the Laboratories WG. This document should assist with obtaining the correct sample qualities / quantities from clients.

BS EN ISO 17892-12
Following discussion within the Laboratories WG, a proposal has been put forward to change the current requirements for the measurement of wear of the cone penetrometer in standard 17892-12.

Increasing member participation
The Laboratories Working Group continues to look for new participants from members and to also encourage more people within the industry to become members of AGS. The aim of the Laboratories Working Group moving forward is to represent all laboratories, bringing more focus to geotechnical and geo-environmental testing. We hope though meaningful discussion and diverse input from across the industry we can help to drive positive change and also provide an increased amount of educational material to our members.

If you do wish to join the AGS Laboratories Working Group, please contact the AGS Secretariat at ags@ags.org.uk.

News

AGS Magazine: December 2020 / January 2021

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The Association of Geotechnical and Geoenvironmental Specialists are pleased to announce the December 2020 / January 2021 issue of their publication; AGS Magazine. To view the magazine click here.

This free, publication focuses on geotechnics, engineering geology and geoenvironmental engineering as well as the work and achievements of the AGS.

There are a number of excellent articles in this issue including;
AGS Yellow Book Photography Competition – Page 4
AGS Upcoming Webinars – Page 8
Contamination in Ground Investigation – Page 16
Professional Indemnity Insurance Update – Page 20
Q&A with David Hutchinson, formerly of Network Rail – Page 26

Advertising opportunities are available within future issues of the publication. To view rates and opportunities please view our media pack by clicking HERE.

If you have a news story, article, case study or event which you’d like to tell our editorial team about please email ags@ags.org.uk. Articles should act as opinion pieces and not directly advertise a company. Please note that the publication of editorial and advertising content is subject to the discretion of the editorial board.

News

New AGS Members in 2020

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The AGS is pleased to announce that in 2020, five member organisations, one affiliate organisation and one practitioner member were accepted by the Membership Panel and approved by the Executive. Fourteen students and graduates were also accepted as new AGS members. The new member organisations are Story Contracting Ltd, Ardmore Point Ltd, Cognition Land and Water Ltd, G7 Geotech Ltd and Jackson Drilling. The new affiliate organisation is Worldsensing and the new practitioner member is James Harrison.

AGS Membership is open to geotechnical and geoenvironmental companies who employ specialist who can provide competent services and affiliate companies who provide support services and supplies to the members. Students and Graduates can also become members of the AGS. Full details of membership criteria can be found at http://www.ags.org.uk/about/become-a-member/