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

  • 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.

  • PFIs have made major construction projects hugely more complicated in contractual terms, with many more parties involved.

  • Several major infrastructure projects are due to be started or completed in the next few years including Crossrail, High Speed 2, the Mersey Gateway, Hinkley Point C nuclear power station and the Hornsea One and Two offshore wind farms.

  • As well as forging a new and unfamiliar regulatory landscape, a hard Brexit would likely lead to a rise in the costs of building materials, and reduced access to cheaper labour. A no-deal scenario would be even worse. Contractors could turn to prefabricated and modular modes of construction to alleviate the costs, but ongoing projects with international components could become mired in disputes as developers et al struggle to meet their contractual commitments. Uncertainty doesn't quite do it justice.

  • The Grenfell Tower disaster has led to a public inquiry into construction and reviews of buildings using similar materials. Related litigation will surely follow as construction companies and housing authorities face greater scrutiny.

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.