Practice

In practice at the English Bar since 1975 specialising in disputes arising out of building and civil engineering activities in England and abroad with practice approximately equally divided between High Court litigation and Arbitrations/Adjudications. Engaged in disputes between employer (public and private sector) and contractors; inter-contractor disputes; professional negligence actions; and, disputes over guarantees, bonds and financing arrangements.

Court/Arbitration Engagements

Example of court and arbitration appointments over the past 15 years include acting for:

o a plaintiff main contractor seeking summary judgment for payment due for substantial works in London's docklands where payment certificates had not been issued;

o a plaintiff owner of an industrial estate (issue: the architect's liability for "unsuitable" GRP cladding panels);

o a plaintiff purchaser of land subject to registered rights of Common (issue: professional negligence of the solicitor engaged for the conveyancing transaction);

o a plaintiff sub-contractor (issue: the existence of a contract and the extent of payment entitlement for work carried out at Canary Wharf in London's docklands) the existence of the contract was determined as a preliminary issue, quantification of payment entitlement was determined at a lengthy second trial which was followed by an appeal;

o a defendant owner of coal and clay (issue: the existence of a contract and the extent of payment liability to the open-cast contractor);

o a defendant main contractor (issues: procedural - whether arbitration or litigation; substantive - alleged liability for defective roofing carried out by now insolvent sub-contractor - limitation);

o a respondent building owner (issue: appropriate rent abatement following terrorist damage to office building in City of London);

o a defendant cattle market operator (issues: whether new cattle market properly designed and constructed -whether defendant obliged to accept lease of new cattle market in its existing state and condition - nature and extent of damages claimable by market operator because of disruption to smooth running of business);

o a plaintiff refurbishment contractor (issue: liability of roofing sub-contractor to indemnify plaintiff for damages which the plaintiff had accepted were due to employer as a consequence of defectively fixed roofs being blown away by storm force winds);

o a defendant local highway authority (issue: liability for recent subsidence damage to dwelling houses allegedly caused by trees planted in streets many many years ago);

o a defendant landowner (issue: various disputes arising from a joint venture agreement entered into with a developer);

o manufacturers of a standard range of rotary cutters in dispute with the supplier of a computer controlled precision lathe (issue: whether trial judge entitled to require quantum claim to be formulated and pleaded in a particular way. Court of Appeal ruled judge not so entitled.
GMTC Tools & Equipment Ltd. v. Yuasa Warwick Machinery Ltd. (1994) 73 BLR 102);

o owners of a London hotel in dispute with contractors in respect of refurbishment works (issues: status/effect of architect’s certificates - whether contractor entitled to further payable time extensions);

o German defendant crane manufacturers and their associated English trading company which was the supplier of the crane (issues: procedural - whether proceedings properly commenced in England against German Company; substantive - whether defendants liable for repair costs and/or loss of profits after crane collapsed);

o one of the commercial arms of the Ministry of Defence (in relation to various supply agreements for the sales of military equipment to a foreign government (two separate and very protracted international arbitrations under the auspices of the Paris based International Chamber of Commerce "ICC" involving many complex liability issues);

o a Belgian process equipment supplier in dispute with a commercial arm of the Kenyan Government (the main issues were decided in an ICC arbitration but satellite litigation concerning security for costs was taken to the House of Lords. Coppée Lavalin v. Ken Ren [1995] 1 AC 38);

o Contractors involved in refurbishment of a North Sea oil platform in dispute with a major oil company employer (money and various cost overrun issues);
o international contractors engaged to construct a chemical waste incineration plant in the north-west of England in dispute with employer in ad hoc arbitration proceedings (issues: whether contract varied and if so extent of entitlement to payment for such varied works);

o the owner of a hotel in the North East of England in dispute with an integrated professional team (issues - professional negligence in relation to cost estimation in context of very significant cost overrun for the project;

o the Respondent local authority employer resisting an appeal to the High Court, against an Arbitrator’s Award in respect of various claims made under a contract for coastal protection works;

o appellant contractors challenging various aspects of an Arbitrator’s Award and at the same time resisting challenges to the same Award made by the developer after lengthy arbitration proceedings concerning a shopping centre development;

o the main contractor engaged by the Welsh Office for a by-pass in North Wales which was being pursued for additional remuneration by the earth moving sub-contractor. This case involved alleged misrepresentation, time extension and additional payment issues, and, after the trial, there were cost applications against non-parties (the directors of the sub-contractor and its solicitors). This case had a particularly complex interlocutory history, giving rise to reported Court of Appeal and first instance decisions
see 81 BLR 31 (CofA), 81 BLR 49 (TCC) and [1998] 1 WLR 1496 (CofA) as well as reported decisions on issues arising in the course of the trials - see [1999] BLR 319 (TCC) and [2000] BLR 81 (TCC);

o the developer of luxury apartments in Gibraltar in dispute with Portugese Contractors (issues - claims for time extensions plus delay and disruption payments; counterclaims for delay and defects; the main issues were dealt with in an ICC Arbitration but satellite litigation concerning the provision of security for costs was dealt with in the Gibraltar Courts;

o Bahamian and Turks & Caicos Contractors seeking to enforce an award made by AAA Arbitrators (sitting in Miami) and to resist challenge to the validity of the Award in the Courts of the Turks & Caicos Islands —Employer’s final appeal to the Judicial Committee of the Privy Council dismissed Summer 2001);

o the owner of a major London listed building in dispute with architects designing/supervising extensive works of restoration and extension (issue: professional negligence in design/supervision and quantification of damages);

o for a professional land drainage consultant, on appeal, who had been found to have negligently designed/supervised certain preparatory works for an industrial hardstanding (issue: whether the TCC’s judges factual findings were correct - this case provides one of very few illustrations of a TCC judge’s factual findings being reversed on appeal);

o a process plant owner in dispute with professional advisers engaged to design/supervise the construction of new production facilities at a paper mill (issues: procedural - appeal against striking out of parts of pleadings; substantive - claim for additional fees, counterclaims for failure to achieve required performance and for defects);

o the owners of an abattoir in dispute with the professional adviser engaged to design/ supervise the upgrading and extension of the premises (issues - negligent design and extent to which and period over which commercial losses might be recovered);

o project managers involved in tripartite dispute with building owners and contractors (issues: existence of a construction contract and whether contractors had right to refer dispute to adjudication);

o a local authority modernising and refurbishing a theatre and concert hall (issues: claim for outstanding/additional fees by the architect/contract administrator: counterclaim for professional negligence);

o a specialist supplier of valves for a North Sea gas facility (issues: quality of valves; potential liability of supplier to management contractor and/or employer; effect of settlement agreement absolving main contractor of actual/potential liability to employer);

o an American management contractor engaged by an international (food industry) manufacturer building a major new process plant in Ireland (issues: liability for alleged negligence of design sub-contractor; extent of potential liability in view of contractual damages limitation clause which was itself subject to a “wilful misconduct” proviso);

o a South African main contractor constructing a new terminal building and associated works, both airside and landslide in Ethiopia (issues: claims made by earth moving sub-contractor for additional remuneration and/or damages for breach of contract — whether liability and whether claims as quantified recoverable);

o UK contract manager engaged to manage the refurbishment of a landmark Victorian Hotel in the City of London, integrating new build with existing (listed) structures (issues: nature of duties of contracts manager; extent of responsibility of the contract manager for time and cost overrun);

o UK main contractor engaged to undertake detailed design, procurement and construction for oil vapour compression/processing in Kuwait (issues: extent of design liability undertaken, whether oil company employer entitled to terminate contract, nature and extent of damages recoverable by employer (if any), counterclaim for recovery of LADs and for extra works).

As Arbitrator

Recent appointments as arbitrator include:

o party-nominated member of ICC Tribunal where glass manufacturer and associated company to which the business was transferred allege breach of contract by supplier of new equipment — equipment alleged to be unfit for purpose and/or unmerchantable resulting in significant downtime and production losses. Liability is in issue, assuming liability effect of exclusion/limitation clause in issue. Damages in issue generally and specifically whether the associated company is properly joined as a party to the arbitration and whether, in any event, any damage which it has sustained is recoverable from supplier.

o nominated by the Chairman of the Bar to resolve disputes between a former member of a chambers and the head of those chambers concerning the amount of rent/commission payments due from the former member up to date of resignation.

o nominated by Chairman of Chartered Institute of Arbitrators to resolve dispute between British manufacturers of stone products and West Indian purchasers - issue: failure to pay without giving reasons.

As Adjudicator

Recent appointments as adjudicator include:

o nominated by Chairman of TecSA in two separate adjudications where Scottish Contractors were claiming additional remuneration was due by reason of unexpected ground conditions.

o agreed by parties to be adjudicator in various disputes arising under long term operating contractors London Tube and operating companies.

As Mediator

Recent experience as a mediator includes:

o agreed by parties to mediate various disputes between hotel owners and designers of hotel extension - result: no settlement at the mediation but thereafter parties continued to negotiate and settlement was achieved before trial was due to commence

o agreed by parties to mediate dispute between a university and contractors engaged in a laboratory refurbishment and new build project - issues: aims for additional remuneration/ counterclaims concerning quality of work - result: settlement agreed at the mediation.

o I also have experience of being a director of a company involved in a commercial mediation. A satisfactory settlement (from the company’s point of view) was achieved after 17½ hours, in the early hours of the morning after the mediation began.

Qualifications and Appointments

1998 Bencher if Gray's Inn
1995 — Deputy Judge of the Technology and Construction Court
Legal Member, Mental Health Review Tribunal (Restricted Patients’ Panel)
Assistant Parliamentary Boundary Commissioner
F.C.I.Arb. - Chartered Arbitrator
CEDR accredited Mediator
TECBAR Adjudicator
Chairman of the Technology and Construction Bar Association
Director (deputy chairman) Bar Mutual Indemnity Fund Ltd
Member of the Complaints Committee and of the Qualifications Committee of the Bar Standards Board
1994 Recorder of the Crown Court (Assistant Recorder 1989-1993)
1973 Called to the Bar, Gray's Inn
1969 — 1972 Fitzwilliam College, Cambridge - Law

Please contact Daniel Jones at djones@atkinchambers.com for further information.

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