Construction typically involves high-value contractual disputes arising out of building projects. The range of these projects is enormous, from disputes about an extension to a domestic house to multi-billion pound pieces of litigation and international arbitration arising out of the construction of massive infrastructure, such as an underground railway, or an energy project, such as an oil rig or a wind farm. No technical knowledge is required.
The importance of contract
Clients in this area of practice might be the contractor, the developer, often the government, or a professional such as an engineer or architect who is alleged to have been negligent.
The contracts are different on every project. The terms are imaginatively amended by clients who sometimes seem dedicated solely to the task of providing work for barristers. An excellent grasp of contract law is required, together with a commercial understanding of the purpose of the particular clause. In the UK, disputes are litigated in either the Commercial Court or the Technology and Construction Court. Globally, they are usually resolved through international arbitration, meaning that practitioners often have the opportunity to travel and work in other countries.
This area of work also provides the highest intellectual stimulation. Many of the leading cases in the law of contract and tort are construction disputes – too many to list here, but they include Murphy v. Brentwood, Williams v. Roffey Brothers and of course Ruxley v. Forsyth as well as many more recent appellate authorities such as Rainy Sky v. Kookmin Bank.
Something new in each case
Construction law combines the challenges of black letter law with complex technical issues. A construction barrister works with experts to become sufficiently expert themselves in order to cross-examine an engineer or an architect with equal knowledge. No prior experience is required: the process is exhilarating and fascinating, and means that each case involves learning something new. Barristers are often asked to advise on live projects, sometimes involving high-stakes decisions such as whether to terminate the contract, and are often involved in disputes from an early stage in order to advise on strategy. The clients are shrewd, robust and practical – and a lot of fun. The worst aspect of commercial practice is undoubtedly the long hours.
Is construction law recession-proof?
As a general rule, a recession tends to generate disputes (and is therefore good for barristers). The credit crunch was different because parties did not have enough liquidity to fund litigation, but in recent years several older disputes have been resurrected as cash flow has improved.
Further, construction in particular is international. English law is chosen by international parties carrying out projects all over the world, and construction barristers are also frequently involved in international arbitration where the law of the contract is a civil code or a different common law system. The very biggest projects are often in countries that are developing their infrastructure or in the energy industry: oil rigs (the Macondo litigation in the US was a construction dispute), ships, wind farms, power stations, airports, railways and hospitals. This means that it is possible to hedge one’s practice. If construction in the UK market is moribund, it may be booming in Hong Kong and Singapore.
Work as a pupil in construction law
Pupillage in a construction chambers, as in any commercial chambers, is likely to involve some long hours. Pupils are involved in all the work of their supervisor: researching the law, construing the contract, drafting pleadings and skeleton arguments, advising in conference and attending court or an arbitration hearing. They meet the clients and the experts, and sometimes take on significant responsibility doing tasks such as drafting witness statements. There is a heavy focus on developing a rigorous and analytical approach to contractual issues. In the second six months there is a focus on advocacy experience, ranging from typical small claims to small building disputes.
Types of law practised
Good construction barristers have…
- Excellent knowledge of the law, in particular the law of contract.
- Very high intelligence and forensic analytical skills.
- A commercial and friendly approach.
LUCY GARRETT is a barrister at KEATING CHAMBERS and works in both litigation and arbitration. She studied English language and literature at the University of Manchester and was called to the Bar in 2001.