Barry has spent his entire career in the construction industry and his experience includes two directorships of regional construction firms. During the last 20 years he has specialised in acting for the Surety Industry, advising Performance Guarantee Bond providers on liabilities with respect to claims made against performance bonds - usually triggered by the insolvency of the bonded contractor. 

In addition he is often briefed by Sureties to comment on bond wordings where unusual terms or contract clause references are proposed by the prospective Employer as the ultimate beneficiary of the bond. He has also acted for the Sureties in recovering claim payments and costs from the indemnitors to the bond.

Claims experience
During his career he has been directly involved in many of the landmark cases which have helped clarify Sureties’ obligations and distinguish between the sometimes nuanced concepts of insurance and guarantee.  These include:

• The Mystery of Mercers –v- General Surety & Guarantee Co. Ltd (GSG)
• Trafalgar House Regions –v- (GSG)
• Perar NV –v- GSG
• Oval 717 –v- Aegon Insurance Co. (UK) Ltd

Barry’s most recent case, which went all the way to the House of Lords, Melville Dundas -v- Wimpey, was a landmark decision for the Surety industry as well as Banks and Insolvency Practitioners.

The Housing Grants Construction and Regeneration Act 1996 often known as ‘the Construction Act’ imputes payment terms into construction contracts wherever the contract itself is deficient, and importantly introduces a regime of ‘withholding notices’.  The absence of a withholding notice can be fatal to the debtor’s attempt to apply set-offs and deductions.  This issue, in the context of an insolvent main contractor under a JCT contract, came before the House of Lords. Their lordships narrowly decided that the employer had a better right to the unpaid monies than the contractor in receivership.

The effect is that this is likely to increase the incidence of employers holding payment without grounds and without a withholding notice, based on a suspicion of the contractor’s insolvency. 

Specialist Advice
Barry can provide specialist advise on bond wordings, bond procurement and bond claims. The latter may be particularly relevant and applicable in instances where Davis Langdon are acting for an Employer who has appointed a defaulting contractor.

He will be based out of our Manchester office but, as most of the Sureties Advisory Unit’s clients are based in the City, will be a frequent visitor to the London office.

For further information on the CBR team can be obtained from:

Project Audit & Recovery – JM Erasmus
Insolvency Practitioner Support – Richard Winson
Sureties Advisory Unit – Barry Higgs