Legal & Finance Feature

LEGAL & FINANCE

TICK BOX. STANDARD ISSUE. RUN OF THE MILL. I WANT NONE OF THE ABOVE.

Successful people aren’t held back by convention. They avoid the predictable, using energy and ideas to achieve a success that isn’t defined only by how much money they have in the bank, but by a belief in living and working on their terms. This attitude makes us kindred spirits. If you like this approach, maybe we should talk.

Scott Philpott Email: scott.philpott@investec-ci.com Call: +44 (0)1481 706496

Minimum eligibility criteria and terms and conditions apply. Your home may be repossessed if you do not keep up repayments on a mortgage. Investec Bank (Channel Islands) Limited is a wholly owned subsidiary of Investec Bank plc. This document is distributed by Investec Bank (Channel Islands) Limited stec Bank (Channel Islands) Limited which is licensed in Guernsey by the Guernsey Financial Services Commission under the Banking Supervision (Bailiwick of Guernsey) Law,1994, as amended, and which is licensed in Guernsey by the Guernsey Financial Services Commission under the Banking Supervision (Bailiwick of Guernsey) Law,1994, as amended, and the Protection of Investors (Bailiwick of Guernsey) Law, 1987, as amended, to carry on banking and investment business. Registered Address: Glategny Court, the Protection of Investors (Bailiwick of Guernsey) Law, 1987, as amended, to carry on banking and investment business. Registered Address: Glategny Court, Glategny Esplanade, St Peter Port, Guernsey, GY1 1WR. Registered Number: 5845. The Jersey Branch of Investec Bank (Channel Islands) Limited is regulated Glategny Esplanade, St Peter Port, Guernsey, GY1 1WR. Registered Number: 5845. The Jersey Branch of Investec Bank (Channel Islands) Limited is regulated by the Jersey Financial Services Commission to carry on deposit taking business under the Banking Business (Jersey) Law 1991, as amended. The Jersey s amended. The Jersey Branch address is One The Esplanade, St Helier, Jersey, JE2 3QA. The Isle of Man Representative Office of Investec Bank (Channel Islands) Limited is regulated Branch address is One The Esplanade, St Helier, Jersey, JE2 3QA. The Isle of Man Representative Office of Investec Bank (Channel Islands) Limited is regulated by the Isle of Man Financial Services Authority and its place of business address is Second Floor, The Old Courthouse, Athol Street, Douglas, Isle of Man, IM1 1LD. by the Isle of Man Financial Services Authority and its place of business address is Second Floor, The Old Courthouse, Athol Street, Douglas, Isle of Man, IM1 1LD.

Construction and Covid-19: avoiding conflict

Ogier partner Martyn Baudains explains why he believes a collaborative approach is needed to avoid construction disputes in the current climate.

MANY ISSUES THAT ARISE OUT OF CONSTRUCTION CONTRACTS NEED DEALING WITH CAREFULLY EARLY ON TO AVOID THEM SPIRALLING INTO BIGGER ISSUES.

The potential for a dispute over construction projects has risen since the start of the Covid-19 pandemic and could continue to be a risk for as long as the virus is in circulation. It’s essential that all parties concerned think carefully before pursuing lengthy and costly litigation, and, where possible, work on finding a solution that avoids it.

THE IMPACT OF COVID-19 ON CONSTRUCTION

The first thing that springs to mind for most people when we talk about Covid-19 is the period when we all had to lockdown. For some it made little difference to their work, but in most places it brought construction sites to a complete standstill. But it wasn’t just the construction sites that were affected – the manufacture of building materials and supply chains were affected too. Add to that the possibility of further lockdowns in any part of the world, possibly with little or no notice, and it’s possible that disruption to building projects could go on for some time yet.

Construction projects are fertile ground for disputes at the best of times. The potential for a dispute has risen with these recent events.

Many issues that arise out of construction contracts need dealing with carefully early on to avoid them spiralling into bigger issues – a failure to properly manage ‘bite-sized’ issues or frustrations at the outset can lead to larger, multifaceted, costly disputes further down the line.

HOW CAN PARTIES MANAGE OR AVOID A DISPUTE?

Open and frank dialogue between the parties early on is the simplest form of dispute resolution and an open conversation can quickly and cheaply put an end to some disputes. But if a matter cannot be resolved informally parties can become entrenched and a dispute can be expensive to resolve, especially when the dispute spills over into Court.

The larger the project the greater the need for a quick, cost effective and commercial solution to avoid getting caught up in a costly legal dispute. The way to avoid costly legal action – with associated additional delays – is a collaborative approach. TOP TIPS FOR MANAGING OR AVOIDING POTENTIAL DISPUTES:

1. Review your contracts and when considering changes or negotiating new contracts consider the effect of Covid-19, not only here but in other parts of the world. 2. When a dispute arises, or may arise, consider notifying your insurers. Some insurance policies require you to notify early or the insurer might refuse the claim. Insurers may appoint lawyers early on to try and prevent a situation from getting worse. 3. Act fairly and reasonably when administering contracts, again bearing in mind the impact of the pandemic elsewhere. Take a collaborative approach and discuss how additional costs might be shared; can works be resequenced or sectional completion added?

Do you need an extension of time? Have relevant notices been properly issued? 4. Adopt a conciliatory approach to unfulfilled commitments – establish a dialogue. Reality test and optimise your position – weigh up the time and cost of an adversarial approach with the cost saving and benefit of a collaborative approach. 5. Keep careful records. Carefully document any discussions/agreements e.g. if agreeing to suspend or vary works, carefully record any discussions and agreement. 6. If agreement cannot be reached or looks unlikely, consider engaging the assistance of Ogier.

OGIER’S SERVICES

Our property expertise goes beyond transactional work – we are specialists in all elements of planning, construction and environmental law, including health and safety requirements. We are regularly called on to give advice to developers and landowners, providing a clear, responsive and commercially minded service that enables clients to take advantage of opportunities and mitigate risks.

Our dispute resolution team has significant experience in dealing with construction disputes, acting for construction professionals, employers and the insurance companies.

The return to the office

Carey Olsen associate Kieran Ogilvie discusses the impact of Covid-19 on the demand for office space in Guernsey.

With no on-island restrictions since 20 June, life in Guernsey, at the time of writing, has returned in many ways to as it was pre-Covid-19 – that is, no social distancing, no face masks, and all facilities open and operating as normal. The island, with its rounded economy, in part comprising a global leading offshore financial services and funds industry, and with a well-established, premium office space offering, can be looked at to consider what approach will be taken by businesses returning to the office post Covid-19 and what considerations the office sector itself may face in the future.

When lockdown was introduced in Guernsey in March 2020, businesses had to quickly transfer staff to remote working and, for the most part, adapted to doing so fairly well. However, the complete lifting of on-island restrictions towards the end of June caused businesses to evaluate the remote working approach. In line with recent research undertaken by real estate firm, Savills, showing that 89% of respondents believe that physical office space remains a necessity, the majority of businesses in Guernsey have returned to the office but with more flexible and remote working options permitted. Factors considered relevant are:

• Collaboration: there are many disciplines that rely on collaboration and team working in the same physical environment that video conferencing cannot recreate. The ad hoc sharing of ideas and discussions with colleagues and clients is less easily replicated remotely.

• Social connections: many working from home have built up ‘social capital’ with colleagues and clients before lockdown, and that social capital would decline as time goes on. Maintaining and creating relationships is more difficult remotely.

• Development: remote working is more difficult for junior staff to manage, with much practical training and support required and tending to be received from working closely with senior colleagues.

• Separation: home working can create problems for parents juggling care for

THE BENEFITS OF REMOTE WORKING, HOWEVER, SHOULD NOT BE OVERLOOKED IN THE RETURN TO THE OFFICE. STAFF MAY PREFER THE FLEXIBILITY OF WORKING FROM HOME FOR AT LEAST PART OF THE WEEK, PARTICULARLY AS REGARDS THEIR LIFESTYLE, COMMUTE TIME AND FAMILY RESPONSIBILITIES.

children with work commitments, and the lack of separation of work and home lives can also adversely affect wellbeing.

• Data protection: there is a recognition that processing personal data is more secure within a secured office space compared with the home environment.

• Leases: many businesses are contractually committed to lease terms of a certain number of years and unless the lease expiry is in sight, firms are keen to make use of space they are obliged to pay rent for in the short to medium term.

The benefits of remote working, however, should not be overlooked in the return to the office. Staff may prefer the flexibility of working from home for at least part of the week, particularly as regards their lifestyle, commute time and family responsibilities. For these reasons, the approach taken across many firms on the island has been to continue to permit flexible and remote working for the time being, on the understanding that the office remains the preferred default environment.

The longer-term outlook for the office space environment is much more difficult to predict. The question of office and remote working generally will not be informed so much by the preference and wellbeing of staff, but by the technology available. The focus will be intensified on the ways in which new tech can automate certain office functions whilst retaining elements required for creativity or independent judgment and thought. It is that development that will most likely inform the progression of working practices and the consequent need for office space in the longer term.

For now, however, it can be said that the approach taken in Guernsey tends to indicate that physical office space remains a necessity for firms to operate successfully in the short to medium term, but that flexibility around remote working is now integral to the working practice and wellbeing of staff.