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Chantal-Aimée Doerries QC of Atkin Chambers explains how construction disputes have changed over the past few years and what to expect in the future.
It’s great being involved in a field that is not just about disputes, but which also involves the creation of something. I don’t mean creative arguments, but rather the projects which are the subject matter of cases. In the commercial field, the law can sometimes be somewhat intangible or removed from reality. In construction disputes the reality of the physical project and the people involved in the project is never far removed. This, combined with the genuinely interesting legal issues that many construction disputes throw up, is what makes my work interesting. The fact that most projects involve a number of different professionals, several contractors, funders, insurers as well as the employer, gives rise to complex questions of legal responsibility when something goes wrong.
A large number of my cases are in arbitration and so are confidential. The case which attracted the most media coverage was probably the Wembley litigation where I represented Mott MacDonald—Brookfield Construction (UK) Ltd (formerly Multiplex Constructions (UK) Ltd v Mott Macdonald Ltd  EWHC 659 (TCC),  All ER (D) 13 (Apr).
It was said at the time to be the largest professional negligence case issued in the Technology and Construction Court (TCC). In terms of case management, this case was ahead of its time. The other side’s incurred costs were very high which was tricky. At the time the TCC’s case management powers related primarily to costs to be incurred, but I persuaded the TCC to make some extremely helpful and robust comments concerning the very high level of costs already incurred. On a lighter note, the site visit to Wembley Stadium (minus the usual crowds) was certainly fun.
Trends in the dispute side of the construction industry tend, not surprisingly, to follow what is being built. On the domestic side, the last few years have seen a number of wind farm disputes both offshore and onshore. These have covered a range of issues from planning to fairly traditional delay and disruption claims to more specific claims relating to the design and construction of the wind turbines.
By contrast, on the international side, the projects are much more varied, but there has been an increase in parties raising allegations of fraud, fraudulent misrepresentation and deceit, whether as a basis of a claim being advanced or in defence to a claim.
Construction cases historically generated many of the leading cases, concerning for example the law of contract, negligence, and damages. The success of adjudication in the domestic market has taken a large number of disputes out of the courts and so over the last 15 or more years we have seen fewer appellate cases developing construction law. This is particularly noticeable in relation to the New Engineering Contract (NEC) standard form contract. The lack of authority ultimately results in an increased risk for clients and makes advising more difficult for lawyers.
More recently there has been a noticeable upturn in cases being fought through the courts. The Court of Appeal decision in Robinson v PE Jones (Contractors) Ltd   EWCA Civ 9,  All ER (D) 111 (Jan) is a good example of the importance of generating case law. The Court of Appeal concluded the builder did not, by reason of his contract to construct or complete the building, assume any liability in the tort of negligence in relation to defects giving rise to purely economic loss. What remains less clear is when a concurrent duty will arise in the construction field, or when the facts will satisfy a Hedley Byrne & Co Ltd v Heller & Partners Ltd  AC 465,  2 All ER 575 assumption of responsibility. We really need a Supreme Court decision on this.
I have two main issues:
In contrast to earlier economic downturns, the 2008 economic difficulties did not generate any substantial increase in construction litigation or arbitration, at least not domestically. The improvement in the economy is likely to result in a greater appetite for fighting cases. This has already been seen in other jurisdictions such as Dubai.
I’m pretty fortunate with the solicitors who instruct me. We tend to work together as a team. In construction, like any industry, it is ultimately important to understand your client’s interests and concerns. Solicitors continue to have a much closer relationship with clients than the bar and as such it is important they do not take for granted the need to keep the barrister informed about the client’s goals and concerns.
Interviewed by Rachel Moloney. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor. This article was first published in LexisPSL Construction on 9 June 2014. Click here for a free one week trial of Lexis®PSL Construction.
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