Life as a construction barrister (series)

In the first of a series looking at construction lawyers, Sean Brannigan QC at 4 Pump Court gives his views on construction disputes and suggests how proceedings could be improved.

What is your favourite thing about construction disputes?

Without doubt my favourite thing is the people you meet. Dealing with construction disputes means dealing on a day to day basis with clients and solicitors who are generally very down to earth, interesting and often enormous fun. You get to meet and sometimes even help quite an enormous range of people.

What is the most memorable case you have been instructed on during your career?

I would say the one that sticks out most for me is Walter Lilly & Co Ltd v Mackay and another company [2012] EWHC 1773 (TCC), [2012] All ER (D) 213 (Jul), where I led the team for the successful contractor. As anyone who has read the very entertaining judgment in the case might appreciate, the case was interesting and memorable—not only because of the forceful personalities involved and the ferocity of the fight that provoked, but also because it was something of a ‘refresher course’ for me in relation to just about every tricky bit of construction law.

Happily that replaces my previous most memorable case, my very first court outing, at the end of which I managed to get my client arrested for both perjury and attempting to pervert the course of justice.

Have you noticed any trends in the cases you’ve been instructed on over the last few years?

Without a doubt the trend has been towards internationalisation. More and more money has flooded into the UK from overseas. In addition both English law and UK advocates appear to be being used more and more in disputes around the world.

The result is a very positive one, not just because of the additional work which increased internationalisation brings, but because it is driving radical and probably overdue changes in how advocates from this jurisdiction (and the Bar in particular) do their job. There is nothing quite like having to explain a ‘Bar Tradition’ to a bemused CEO of a Chinese or American Contractor to make you realise it is probably best if you never have to do so again.

Has there been any development (or lack of development) in construction law in recent years that concerns you?

Generally I would say no. In fact in my view the crop of judges we currently have in the Technology and Construction Court (TCC) are universally excellent. They are clever, practical, commercial and human and I think that is being reflected in judgments emerging from the TCC.

The one slight issue where I think further thought and assistance from the court might be needed is in the continuing thorny issue of concurrent delay. There remain a number of difficult issues in that area of the law which drive uncertainty. My suspicion is the court will seek in an appropriate case to grapple with those sorts of issues further.

If you could change one thing about construction law or the litigation process, what would it be?

I think most significant contracts would benefit from a clause agreeing at the start a ‘wise man/woman’ panel to operate as a Disputes Avoidance Board, dealing with disputes before they spiral out of control. That worked fantastically well with the 2012 Olympics building programme (a project which I am far from sure the construction industry got nearly enough credit for) and is fast becoming the preferred method of grappling with problems in big international projects.

I also think limiting all hearings to two weeks or less and banning the use of email from 6pm to 9am would be two very positive steps.

What impact do you think the (apparently) recovering economy/construction industry will have on the type of cases you are instructed on over the next 12 to 18 months?

For me personally I think it will have relatively little impact, as quite a lot of what I will be doing in the next 12 to 18 months involves international projects. More generally though I suspect house building will take off in a big way and that will generate a fair amount of work.

What advice would you give to solicitors who instruct you to help get the best out of each other?

I would always advise them to seek to pay me the very highest fee they possibly can for the work! That aside, I think communication and teamwork are the absolute key. In my experience the best results always come about in cases where a ‘team’ mentality and pretty rigorous management (of what is needed and when) has been adopted from the start and applied.

That way everybody is encouraged to ‘own’ the battle the team is in and to put their ideas and observations forward without fear of being thought stupid. It is amazing the points that get noticed and how much better the arguments can be honed whenever that is the approach.

Equally, one shouldn’t underestimate the positive effect of a team on a long case when pretty rigorous management of deadlines (with drafts required a sufficient time before final service for example) enables everybody to get home in time for kids’ bedtimes, football or just to have a life, as the case may be.

Sean Brannigan QC is a construction barrister at 4 Pump Court

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor. This article was first published in LexisPSL Construction. Click here for a free one week trial of Lexis®PSL Construction.