Construction

In a nutshell

Construction law can broadly be divided into non-contentious and contentious practice. The first involves lawyers helping clients at the procurement stage, pulling together all the contractual relationships prior to building work; the second sees them resolving disputes when things go wrong. In the past the relatively high monetary stakes involved and the industry trend for recovering building costs through the courts made construction a litigation-happy practice. However, since the 1990s most new contracts have contained mandatory procedures to be adopted in case of dispute. Adjudication of disputes has become the industry norm and these tend to follow a swift 28-day timetable (although parties can agree to extend this period.) Others are resolved through mediation or arbitration; however, some disputes are so complex that the parties do still choose to slug it out in court.

Construction

What lawyers do


Procurement

  • Negotiate and draft contracts for programmes of building works. Any such programme involves a multitude of parties including landowners, main contractors, subcontractors, engineers and architects.
  • Work in conjunction with property lawyers if the client has invested in land as well as undertaking a building project. Together, the lawyers seek and obtain all the necessary planning consents as well as local authority certifications.
  • Where the developer does not own the land, liaise with the landowner’s solicitors over matters such as stage payments, architects’ certificates and other measures of performance.
  • Make site visits during development.


Construction disputes

  • Assess the client’s position and gather all related paperwork and evidence.
  • Extract the important detail from huge volumes of technical documentation.
  • Follow the resolution methods set out in the contracts between the parties.
  • Where a settlement is impossible, issue, prepare for and attend proceedings with the client, usually instructing a barrister to do the advocacy.

Realities of the job

  • Drafting requires attention to detail and careful thought.
  • It’s essential to keep up to date with industry standards and know contract law and tort inside out.
  • People skills are fundamental. Contractors and subcontractors are generally earthy and direct; structural engineers live in a world of complicated technical reports; corporate types and in-house lawyers require smoother handling. You’ll deal with them all.
  • Most lawyers prefer either contentious or non-contentious work, and some firms like their construction lawyers to handle both, so pick your firm carefully.
  • A background in construction or engineering is a major bonus because you’ll already have industry contacts and will be able to combine legal know-how with practical advice.

Current issues

October 2020

  • Construction work in the UK is highly dependent on EU migrant workers, and it's concerning to note in the wake of Brexit that around two-thirds of UK construction materials are imported from the EU. According to a 2018 report by the Office for National Statistics, 33% of the construction workforce in London are migrants from EU countries. Terms must be drawn up as part of the withdrawal process either maintaining the status quo or putting an equivalent in place; otherwise, construction output could be seriously diminished.
  • The UK construction industry as a whole enjoyed five years of consecutive growth from 2013. In spite of Brexit uncertainty, a forecast by the CPA (Construction Products Association) predicted a small dip in the growth rate in 2018 but another increase thereafter, driven in part by large infrastructure projects including HS2 and nuclear power station Hinkley Point C. Boris Johnson's government has prioritised 'levelling up' the UK's infrastructure, suggesting construction will be a priority over the next five years.
  • Large growth-driving projects have however been hit by the Covid-19 crisis, with Hinkley Point C’s main concrete supplier being shut down after an outbreak of the virus in July 2020. Sites are working whilst observing social distancing and the Construction Leadership Council has recommended the use of face coverings for construction workers.
  • Despite many predicting a long-term decline in travel and commuting that is sure to worry developers, the HS2 construction process has powered through the crisis using social distancing measures to continue construction. You can learn more about HS2 and infrastructure projects in a dedicated feature on our website.
  • Sajid Javid launched a new national housing agency, Homes England, at the start of 2018, before his short-lived appointment as Chancellor. The new body aims to deliver an average of 300,000 homes per annum by the mid 2020s, primarily on brownfield sites. However, the government fell under their annual target in 2019 by almost 100,000 properties.
  • July 2019 saw Sadiq Khan quash plans for the ‘Tulip’ skyscraper in the City of London, despite the project having been approved by the City of London Corporation three months earlier, as the tower would have not provided many public benefits.
  • ADR and arbitration will probably be a vital growth area for the UK after Brexit. London remains one of the world’s leading arbitral centres, as English law still governs many cross-jurisdictional contracts – agreements that span the Middle East, Africa and the rest of Europe. According to an Arcadis report, the length of time to resolve a dispute in the UK has increased by 28% since 2018, taking just over a year. Good news though, this is still the shortest time across all recorded jurisdictions, whilst the average cost of resolving disputes in the UK nearly halved between 2018 and 2019.
  • At the end of 2018, the government announced it was investing £72 million in a Core Innovation Hub which will fund the development and use of technologies including virtual reality, digital design and offsite manufacturing. This is part of a broader industrial strategy, targeting job creation. The Hub is currently focusing on a design approach that allows buildings to be erected quicker and in a more environmentally friendly way. They’re also working on creating more Covid-19-friendly manufacturing processes and products.
  • The coronavirus crisis saw many buildings repurposed in a way the UK has never seen. The most prolific of these are the Nightingale Hospitals in London, Birmingham and Manchester, all of which were converted from conference venues to hospitals in a matter of days.