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• Construction Law

• • Overview

  • A Day in the Life of

  • Interview

  Put simply...

  Construction focuses around contentious and non-contentious work. The former involves early dispute resolution through settlements, arbitration, third party mediation or finally, litigation and adjudication. Non-contentious work includes preparation and negotiations on building projects, assisting on areas of procurement of various resources and materials, and advising on environment, health and safety, insurance and other matters.
  
  Projects can include segments other than construction, like infrastructure projects for roads, hospitals, public amenities, prisons, etc; industry-specific projects such as those in oil & gas production, operations in power generation, water and hydroelectric projects such as dams, reservoirs and so on. A projects’ lawyer works in collaboration with other colleagues and professionals in project finance and real estate/property to see projects through to fruition.
  
  The movement towards Public Private Partnerships (PPP) has seen the advent of private finance and management into what previously was governmental domain, and many public projects are today executed with Private Finance Initiative (PFI), not only in the establishment and execution phase, but also in running future operations and management of such enterprises.

  What is involved in Construction Law?

  Construction lawyers who practice in non-contentious areas of the field work on: (a) negotiate and draft agreements between interested parties such as the property company or landowners, builders, architects, engineers, contractors and sub-contractors; (b) coordinate with other legal departments in finance and real estate to complete the necessary due-diligence, conditions-precedent and funding of the project; (c) obtain necessary civil and municipal approvals and sanctions from local authorities; (d) monitor progress of the construction with periodic site visits and meetings with stakeholders; and (e) on completion and handover of the project as per contractual terms, and assist in completing registration, tax and other formalities.
  
  Contentious practice, as mentioned above comes into play when disputes arise at any stage of construction, or after completion. In the past, litigation was resorted to frequently to resolve disputes, given the large amounts of money and certain loopholes in existing law which made it easier to litigate endlessly. But in recent years legal reforms and tighter regulation within the industry have ensured that the use of litigation as a means of dispute resolution has been strictly curbed.
  The rule of thumb in the construction industry today is that all agreements must have distinct provisions on alternative dispute resolution, should future issues arise. Arbitration is a mandatory clause in the newer lot of contracts, and if it becomes necessary to seek judicial intervention, then the dispute should be resolved through adjudication.
  
  The latter runs on a short timetable and it is compulsory that the Pre-Action Protocol, begun by the Technology & Construction Court, is completed and has failed; only then will the court entertain the matter. The work of projects’ legal specialists follows on more or less the same lines as construction lawyers, a few distinct or specific tasks relate to the way a project is structured. As solicitors, you will provide advice to a company formed exclusively for execution of the project at hand.
  
  This company will have multiple stakeholders, each of whom may be investing funds, or are the actual builders, or end-users once the project is up and running. While this holds true for private sector projects, lawyers can also act for entities which commission projects.

  What is needed for Construction Law?

  A construction and projects lawyer should be well-equipped with basic skills in negotiating and drafting procedures, have excellent interpersonal skills and the ability to work in large teams made up of different kinds of professionals. You will need to be knowledgeable and updated on latest developments and trends in finance, real estate, construction, planning, infrastructure development, and when working on industry-specific projects, an understanding of that industry is essential.
  
  Personal qualities required include a creative & lateral thought process, the ability to breakdown complex structures and concepts into simple facts, strategic and analytical thinking, some technical knowledge and expertise in related professions such as architecture or engineering is always an added asset.

  Current Climate for Construction Law?

  Investments in construction in the public sector are booming, particularly in healthcare and education. Several mammoth projects are currently underway in the UK with more expected with plans for the 2012 Olympic Games.
  
  There is also a huge amount of work on transport infrastructure in aviation and railways. You’ll probably have noticed how much of a nightmare it is using Euston on the weekends because of it!
  
  

  A day in the life of... Peter Webster, Principal at Thea Solicitors

  When I was a trainee, I remember on several occasions my supervisor in the corporate department contrasting his life in practice with his brief career as a lecturer at the College of Law beforehand.  After two or three years as a lecturer, he said, he realised that on a given day of the year, he could predict almost exactly which page of his notes he would be speaking from. 

  Practice, he reflected, brought a refreshing element of unpredictability, thanks to the post.  Email, laptops, mobile phones and Blackberrys have further added to the unpredictability.  It requires a very determined resolve to guard your personal time and space today to keep your work inside the bounds of 8am to 8pm.  Calls with clients at 11pm and exchanges of emails at 2am can happen without much thought by either side that this unusual or intrusive.  I run my own practice now in Central London. 

  I can predict to an extent how my day is going to look in terms of my movements.  I will come into and leave my office early or late to avoid the rush hour.  If I have hearings or meetings out of the office, I may well work from home if it is more convenient to go to them straight from there.  Clients never come to see me unannounced; this is always arranged in advance.  Lunch tends to be a sandwich or a salad from somewhere on the Strand or Fleet Street or Chancery Lane. 

  Much of what happens around this is an effort to give legal significance to the information and demands that come my way through the various media of communication.  The commercial data that needs to be turned into a contract.  The complaints that need to be turned into claims.  The claims that need to be mediated towards a resolution.  There is a good deal of unpredictability around when this material is going to arrive. 

  The quieter times are the chance to manage existing clients as best you can to avoid everything turning up at once.  I can look out of the window at the Royal Courts of Justice, and chat informally with the barristers and mediators who have space here.  The atmosphere is very relaxed, open and good humoured, with none of the office politics of the larger firms that I have worked for.  The downside is having to attend to so much administration which teams of support staff would take care of the larger practices where I have worked.  At least that is fairly predictable though!

  Daily Diary

  Time:	Diary entry
  08:00	Check emails at home and respond to anything urgent.
  09:00	Breakfast and getting ready to go out.
  10:00	Travel into Central London.
  11:00	Check post and DX and make telephone calls.
  12:00	Dictate shorter letters and attendance notes.
  13:00	Lunch.
  14:00	Work on longer documents (may dictate or type/mark up).
  15:00	Ditto.
  16:00	Ditto.
  17:00	Send out anything that needs to go in the day's post or DX and review new matters that have arisen during the day.
  18:00	Deal with practice administration.
  19:00	Dinner.
  20:00	Entry into “twilight zone” of late night emails and calls from clients (often after any commitment they or I have planned for the early evening).

  Name:  Peter Webster

  Firm: Thea Solicitors Limited
  

  Current position: Principal

  What attracted you to Construction Law?

  The construction industry promised excellent opportunities for someone interested in alternative dispute resolution techniques.  I had been involved in a conciliation project in Rwanda before training as a solicitor.  I had also trained as a neighbourhood mediator whilst I was a trainee solicitor.  Lord Woolf's Civil Procedure Rules and the Housing Grants Construction and Regeneration Act 1996 – both brought into effect whilst I was a trainee – made mediation and adjudication respectively prominent alternative options to litigation.  The opportunity to work for the top construction law firm in the country in its London office on qualification during the early stages of these new regimes offered an exciting start to my career.

  Is it what you expected from Construction Law?

  The reality however was that the firm was still making most of its profits from large litigations and arbitrations.  To make progress in the firm, you had to get onto the teams of lawyers who each spent 16 chargeable hours per day organising the millions upon millions of documents generated during the disputed project.  Once the new alternative forms of dispute resolution (adjudication in particular) began to erode the number of gigantic litigations and arbitrations, the firm's profits fell sharply, and they downsized and were eventually taken over by a predominantly corporate practice.
  

  What is the best part of Construction Law?

  There are so many different kinds of people involved in the sector.  It is a challenge to try and reconcile the personalities, the commercial aims, and the legal rights of employers, architects, engineers, contractors and specialist subcontractors.  Whether it is in the negotiation of a contract or the settlement of a dispute, this is a significant element of the work.

  What is the worst part of Construction Law?

  On the projects side, it would be getting inundated with emails copied to 66 other people with substantial text and attachments late in the day.  On the disputes side, it would be getting vast bundles of disorganised correspondence, most of which deals with very little of legal significance.

  Wise words for anyone considering Construction Law?

  If you join a firm which acts for employers/developers, then you are likely to play second fiddle to the corporate or the property team.  If the firm acts for contractors or consultants, then you should be able to develop your own client base, but the fees you can charge may not be as great as departments which act for the financiers.  If you have an interest in the sector based upon personal connections, you should make sure that the firm that you choose will value the work they can provide.
  
  

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