Construction at the Bar

In a nutshell

Like shipping, construction is a well-defined subsection of the Commercial Bar. At a basic level cases relate to the law of contracts and tort, but this area is very much defined by its subject matter rather than any specific legal niceties. Disputes can occur over anything from outdoor pools and office buildings to power stations and airports. The parties involved include builders' firms, contractors, engineers, architects, government departments and financiers.

Major cases are heard in the Technology and Construction Court (TCC) and occasionally in the Companies Court, while lower-value proceedings may occur in the County Court. The TCC deals with around 450 to 500 cases and 50 trials each year. At the same time, the duration and cost of taking matters to court means arbitration is commonly pursued, especially if a matter spans multiple jurisdictions.

The realities of the job

  • Construction cases are notoriously paper-heavy – probably more so than those in any other area of law – and can drag on for years. Hearings can last for weeks. A sterling ability to master and marshal facts and documents is required.
  • Barristers are not in court ever day, and often not even every week. The size of cases means that oral advocacy is not what matters first and foremost. Construction barristers prefer to hone their skills on paper. Pleadings can be 800 or 1,000 pages long.
  • Baby juniors cut their teeth on disputes related to the home – extensions, basements, swimming pools – as well as things like debt claims related to damages to telecoms cables.
  • Young barristers often act as first or second junior on larger cases. The biggest relate to the construction of major projects like Wembley Stadium, the Olympic Park and the yet-to-be-completed skyscraper at 22 Bishopsgate in the City (formerly the Pinnacle).
  • There is an obvious overlap with property law, but perhaps less obviously also with areas like technology, energy, professional negligence and international finance.
  • Personality matters a lot in the construction industry. Barristers need to have an easy facility with everyone from builders, foremen and contractors to bankers, accountants and the CEOs of major corporations.
  • You may think of construction as a very masculine industry, but at the Bar this is a misguided perception. Yes, construction is male-heavy, but no more so than commercial or Chancery practice, and there are many successful female practitioners.

Current issues

October 2023

  • Since the 1990s, most construction contracts have had clauses containing mandatory dispute procedures. Standardised 28-day adjudications have become the industry norm for small tiffs. Only the largest, most complex cases usually reach the courts. 

  • With a number of Private Finance Initiatives (PFI) and Public Private Partnerships coming to an end, infrastructure Intelligence warns that health and education services could be affected the most. There are worries that the public sector may not be equipped or ready to receive ownership of the buildings. 

  • The built environment and construction sector currently contribute significantly to greenhouse gas emissions, energy consumption, and natural resource usage. However, the implementation of the Environment Act in 2021 has prompted the sector to take concrete actions to improve air quality, reduce pollution, promote biodiversity, and enhance resource efficiency. Additionally, the Future Homes Standard will mandate newly constructed homes to have much lower carbon emissions compared to current standards. These efforts aim to make the built environment more sustainable and environmentally friendly. 

  • According to the most recent Arcadis report, the time taken to resolve construction disputes in the UK has increased to just under 12 months, two months longer than the previous year. However, the UK still holds the record for the fastest dispute-resolving process. The report also revealed that the average value of construction disputes decreased by 3% globally between 2020 and 2021,  

  • The Grenfell Tower inquiry is drawing to a close, with the report set to be released in 2023. Given the sheer volume of pages in the report, any criminal prosecutions are unlikely to occur until 2024.The inquiry involved 300,000 documents, 1,500 witness statements and 308 days of evidence.  

  • Besides the Building Safety Fund, the government has recently revealed its plan to allocate £8 million to local authorities for the establishment of dedicated enforcement teams. These teams will ensure that building owners carry out essential safety works, with the authority to take legal action if required. Although this is a positive step, it raises questions about the government's delay in providing this funding and whether the initial amount is sufficient. Furthermore, there is a concern about why the government is relying on third parties to conduct the checks. 

  • More than 100 firefighters and police officers are also suing Kensington and Chelsea borough for at least £1 million, citing emotional trauma and long-lasting physical injury. As things currently stand, more than 1,100 people have launched damages claims following the tragedy, represented by 22 different firms. An additional 16 firms are representing the defendants.  

  • The construction sector remains at the cutting edge of innovation, thanks to the growing adoption of technology and modern construction methods. Notable examples of this progress are the successful completion of Battersea Power Station in 2022 and the tunnelling efforts for London's Thames Tideway Tunnel.

Some tips 

  • Prior knowledge or experience of the construction industry is relatively rare for those entering the profession. Commercial experience and interests are more common. A passion for contracts and torts is a must. 

  • It's easy to tell which are the leading construction sets. The London market is dominated by a duumvirate of specialist sets: Atkin and Keating. 

 

 

Some tips

  • Prior knowledge or experience of the construction industry is relatively rare for those entering the profession. Commercial experience and interests are more common. A passion for contracts and torts is a must.
  • It's easy to tell which are the leading construction sets. The London market is dominated by a duumvirate of specialist sets: Atkin and Keating.