Atkin Chambers Barristers
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Practice
Nicholas specialises in domestic and international litigation and arbitration in the construction, engineering and infrastructure, IT and telecommunications, energy and natural resources, transport and professional negligence sectors. Throughout his career he has handled many high profile, high value, complex and difficult matters representing a huge variety of suppliers, manufacturers, contractors, employers and their professional advisers.
He has been recognised for many years by the legal directories, Chambers and Partners Guide to the Legal Profession and The Legal 500, as a leader in the fields of Construction, Information Technology and Professional Negligence.
He has an established reputation for his sustained application and technical understanding and for the skilful handling of his clients’ cases. He has appeared in landmark cases and originated and sustained arguments that have influenced the development of the law.
Internationally he has acted in numerous arbitrations under varying rules in relation to complex disputes arising out of projects all over the world, acting for many overseas clients, including German, French, Swiss, US, Japanese and multinational Joint Ventures.
He regularly acts as an arbitrator, adjudicator or mediator.
Construction, Engineering and Infrastructure
Nicholas has successfully represented a large number of employers, governmental and quasi governmental organisations, developers, national and international contractors, sub-contractors and consultants on many cases, both domestic and international, concerning numerous types of building and civil engineering projects.
He appeared in the landmark case of Leach v Merton 32 BLR 32, and in numerous other cases that have shaped this area of the law.
His recent clients include:
(a) Commercial Buildings
o Developers in a tripartite arbitration against contractors and consultants in connection with a substantial commercial development and in associated adjudications and litigation.
C & G (Holborn) Ltd v Kier Regional Limited and AYH Plc [2009] BLR 90.
o The Employer/Developer in connection with a contractor’s claim for loss and/or expense and extensions of time arising out of a contract for conversion to shops, restaurants, flats and offices and a hotel of a redundant city centre utility building in Manchester.
o Mowlem in connection with a dispute about design and delay issues arising out of the restoration and regeneration of the Heritage Spa buildings at Bath.
Bath & North Eastern Somerset District Council v Mowlem Plc [2004] BLR 153
o An international Bank pursuing contractor’s assigned claims in an adjudication.
o An Employer in an adjudication concerning a contractor’s claim for loss and expense.
o Developers in connection with a contractor’s claim for loss and/or expense and extensions of time arising out of the contract for the conversion to shops and flats of a landmark building in Birmingham.
o A national contractor in connection with a dispute about the unforeseen condition of a redundant utility building converted into shops and flats.
o An international grocery company in connection with a dispute concerning delays due to unexpected subsoil conditions arising out of the construction of a ready-made meal production factory leading to delay, loss and expense, loss of revenue and groundworks re-design costs.
(b) Institutional Residential
o An Employer in a dispute about the construction of 560 student dwellings under the terms of the JCT with Contractor’s Design conditions with Guaranteed Maximun Price Agreement
o A national outsourcing services provider in connection with contracts for the provision of accommodation for military personnel.
o A contractor in connection with an adjudication concerning delay and loss and expense arising out of the construction of a luxury hotel.
(c) Sports Facilities
o A national Contractor in a long-running arbitration about extensions of time and loss and/or expense in connection with the construction of a Sports Stadium, using an “As Built But For” delay analysis.
o A Sub-Contractor in a dispute about the “iconic” steelwork for a Premier League Football Stadium.
(d) Special Applications and Infrastructure
o The Natural History Museum in connection with a fitness for purpose dispute in relation to an air-conditioning installation for an installation for the storage of ancient preserved animals and artefacts.
o French contractors in enforcing an adjudicator’s decision concerning the design and construction of a geodesic dome.
o A national contractor in a dispute about the piling below ground.
o Coastal Authority in connection with variations claims in an ICE arbitration about sea defences.
o A national contractor in connection with a dispute as to piling and the preceding geotechnical investigation.
Nicholas has acted in many other disputes on behalf of commercial, charitable and local government bodies in disputes concerning educational facilities, hospitals, housing estates and leisure facilities.
Energy, Natural Resources and Utilities
Nicholas has wide experience acting for contractors on domestic and international disputes arising out of utilities, oil and gas exploration and exploitation and the design and construction of power plants. Examples of his clients include:
(a) Energy
o A Joint Venture in resisting the enforcement of an adjudicator’s decision concerning the supply and installation of steelwork as part of a Liquefied Natural Gas unloading and storage installation. Cleveland Bridge (UK) Limted v Whessoe-Volker Stevin Joint Venture [2010] EWHC 1076
o National Grid Gas in a case concerning the enforcement of an Adjudicator’s decision arising out of works for the construction of a gas pipeline.
McConnell Dowell Constructors (Aust) Pty Ltd v National Grid Gas plc [2007] BLR 92
o Both employers and contractors in several cases involving technical and legal issues concerning “fitness for purpose” of power station turbine sets and electricity co-generation plants, heat recovery boilers, gas, steam and multi-fuel turbines both in the context of pure power generation and in contexts ancillary to industrial and other commercial processes under various commonly used standard terms including Powergen Combined Heat and Power conditions and the I.Mech.E standard conditions.
o A major Japanese contracting company in an arbitration concerning technical issues engaged by the alleged self destruction of turbine blades due to harmonic stress caused by resonance at the operating frequencies of the UK Grid.
o A national power generator in a dispute concerning the robustness of condenser tubing in a steam turbine power generation station.
o Sub contractor in connection with a dispute concerning the design and construction of superheaters and water chemistry and Taking Over and Acceptance issues.
o An international manufacturing company in a dispute about the promised fuel efficiency of a Combined Heat and Power Plant.
(b) Offshore Structures
o The fabricator of key metallurgical components of a hydraulic jacking system for an offshore accommodation vessel in the Irish Sea in a “fitness for purpose” dispute.
o A major contractor in a dispute about the metallurgy of weld testing used in the fabrication of an oil rig for use in the North Sea.
(c) Energy Recovery from Waste
o The Bank of Scotland in connection with a claim upon a bond made in respect of the alleged defective design and construction of a waste handling plant.
HLC Engenharia E Gestao De Projectos v Bank of Scotland TCC 2006
o The UK subsidiary of US Sub-Contractor in a dispute concerning an alleged discrepancy between the designed and actual efficiency of the process for the generation of electrical energy from the combustion of waste tyres.
o An international contractor in a dispute concerning the Energy Recovery Facility (household waste to energy).
(d) Mining
o A mining contractor in connection with volume, productivity, price disputes arising out of open cast coal mining.
o A contractor in a dispute concerning the extraction of methane gas from exhausted mine workings.
(e) Utilities
o A national water authority in respect of a claim for the defective installation of a large subterranean water main which resulted in the failure of the main and extensive flood damage in the surrounding city centre area.
Process Plant and Industrial Processes
Nicholas has acted in numerous disputes concerned with industrial processes including steelworks, processing of foods and materials such as paint and chemicals (for pharmaceutical and other uses). His clients include,
o An international process plant corporation in connection with a dispute about the efficiency of co-generation plant to supply electrical power co-ordinated with the requirements of a paper manufacturing plant.
o The German manufacturer of linings for steel blast furnaces in connection with dispute concerning fitness for purpose.
o A contractor in connection with a dispute arising out of the construction of a 650 Tonnes Per Day clinker plant.
IT and Telecommunications
Nicholas has an excellent reputation for work he has undertaken in the IT and Telecommunications’ field acting for suppliers, manufacturers and contractors in relation to telecommunication systems; computer software; and hardware systems including microchip quality disputes, plant and machine tool control systems; bespoke software source code design and implementation for various applications including relational database management system applications. Examples of his recent clients include:
o Atos in a claim arising out of an alleged misrepresentation in relation to a pan European software implementation for Avis’ car hire business. The case concerned the termination of a contract for the implementation of a Europe-wide ERP (Enterprise Resource Planning) software system for Avis. The case involved consideration of the way in which the ERP package software chosen was configured, customised and outsourced. Satellite litigation included issues of privilege from disclosure
Atos Consulting Ltd v Avis PLC [2005] EWHC 982, 105 Con LR 54 (striking out)
Atos Consulting Ltd v Avis Europe Plc [2007] EWHC 323, [2008] Bus. LRD 20 (disclosure).
o A national software house in a dispute concerning the design and installation of a relational database management system (using UNIX and INFORMIX). The issues raised included fitness for purpose, the number of “bugs”, time for performance and the boundary between specified requirements and Change Control.
o A national telecommunications corporation in relation to a “fitness for purpose” dispute in respect of tele-sales software and hardware design and implementation (UNIX and COBOL).
o An international defence contractor in connection with a dispute arising out of the fitness for purpose of a radio frequency based Defence System (software and hardware).
o A consortium of international Banks in connection with a dispute about the design and construction of software for a worldwide banking settlement services organization.
o An international telecommunications Contractor in connection with a dispute about delivery of a 3G telecommunication system.
o A steel manufacturer in a dispute about a computer controlled robotic steel slab-cutting machine. The issues involved fitness for purpose and tolerances and the extent to which the slab cutting process was properly controlled by the computer hardware and software.
o A sub-contractor in connection with System Implementation works in connection with a customer information and billing system for the Sydney Water Authority, New South Wales.
International Arbitration
Nicholas has appeared in various international arbitrations involving ICC, LCIA and other international and foreign dispute resolution rules and procedures. Clients for whom he has acted include:
o International contractor in ICC arbitration proceedings against international consortium including China National Petroleum Corporation concerning an oil pipeline and associated storage, pumping and tanker marine terminal loading facilities. Extremely high value claims were made arising out of a FIDIC based contract for design and construction. The contract was governed by the Laws of the Republic of Sudan including the principles of Sharia as set out in the Book and the Sunna.
o Swiss designers in an ICC Arbitration concerning the design of a Vitamin C Production Plant in India. The issues involved consideration of what were acceptable efficiency ratios of raw materials to product and acceptable production capacity. Indian law was the proper law of the contract.
o An international electrical engineering company in an ICC arbitration in connection with allegations as to defects in a communications and control installation (Lack of Availability and Mean Time between Failure) for a Mass Transit Railway.
o International Contractor in a dispute about delays and loss and expense arising out of the construction of the roads and pedestrian ways along a City centre waterside in the Middle East, under the laws of the UAE.
o UK International Contractor in connection with a dispute about delays, loss and expense and variations arising out of the construction of interchanges, underpasses and spur roads for a capital City road ring in the Middle East, under the laws of the UAE.
o International Contractor in connection with claims for extensions of time and loss and expense arising out of the construction of a road, bridges and underpasses in the Middle East under the laws of the UAE.
o Civil Engineering Contractor in a dispute arising out of the construction of a cereals and fertiliser storage and handling terminal at an East African port under the law of the Republic of Kenya.
o International Joint Venture in an LCIA arbitration concerning the fitness for purpose of insulating materials used in turbine generator sets.
Transport
Nicholas has represented a number of contractors, domestic and international, on disputes arising from road, mass transit rail and bridge and tunnel projects and infrastructures including ports. His clients include:
(a) Railways
o Contractor in relation to tunnelling work for the sub Thames section of the Channel Tunnel Rail Link.
o Commercial owners of a Georgian listed building affected by the tunnelling of the Jubilee Line Extension in London.
o German Manufacturers in connection with a dispute arising out of the provision of rolling stock for the District Line in London.
o UK Rail Operator in connection with a challenge to an adjudicator’s decision about the calculation of extensions of time arising out of the construction of new city centre passenger terminal.
o German Contractors in connection with a dispute about design responsibilities under ICE Design and Construct conditions incorporating Network Rail conditions in relation to an upgrade of a commercial railway.
o National track maintenance contractor in an adjudication about track inspection and maintenance obligations following the Hatfield Rail disaster.
o An Engineering consultancy in a dispute arising out of the Croydon Tramlink.
(b) Roads
o UK Contractor in a dispute about a Sub-Contractor’s landfill claim in connection with the construction of a trunk road.
o UK ContractorI in connection with a dispute about the construction of the structural lining of a trunk road tunnel.
(c) Tunnels
o UK Contractor in arbitration concerning the expected and actual rate of cut of tunnelling machines through dolomitic conglomerate.
o International Consortium contractor in connection with construction of tunnel for international rail link
(d) Airports, Ports and Infrastructure
o Airport Authority in connection with a contract for the design and construction of Remote Stands at Airport Terminal under NEC 2 conditions.
o International Contractor in connection with a dispute about port grain handling installation in East Africa.
o Commercial Dock Operator in a dispute about dredging and conversion of a dock to provide Ro-Ro terminal and ship breaking yard
(e) Bridges
o International Contractor in a dispute about the design of a bridge required for a river crossing to transport bauxite in West Africa.
o UK Contractor in connection with a dispute about an estuarial bridge crossing.
o International Joint Venture in connection with disputes arising out of the Second Severn Crossing.
o Contractor in connection with failure of cast steel components of the Clyde Arc bridge.
Professional Negligence
Nicholas has wide experience in the professional negligence field, acting for claimants, defendants and their indemnity insurers in relation to claims brought against a range of professionals. Examples of his clients and the disputes in which he has acted include:
o Employers concerning professional negligence of project managers and quantity surveyors arising from the construction of a major commercial office development in central London.
o Builders in a case concerning the destruction by fire of a supermarket development.
o Architects in a claim for fees for the design of a chain of cinema complexes.
o Architects in connection with the effect of a ‘net contribution clause’ incorporated into the RIBA “Agreement for the Appointment of an Architect”.
o Builders in cases concerning the collapse of building works and cranes.
General Commercial
Nicholas has acted in numerous disputes concerned with general commercial issues such as the interpretation of commercial contracts, bonds, guarantees, collateral warranties and assignments. His recent clients include,
o A major manufacturer in a dispute about the interpretation of the payment terms of an agreement to supply energy in various forms.
o A data storage and handling contractor in relation to the terms of an agreement licensing the use of data for analysis for commercial purposes.
o An international Bank in connection with claims against it base on collateral warranty and financing documents.
o An international Power Company in a dispute about the interpretation of price fluctuation clauses linked to the cost of gas in an energy supply contract.
o A major services outsourcing contractor in an arbitration under LCIA Rules about set offs under ‘umbrella’ term contract for services.
Arbitrator, Adjudicator, Mediator
Published awards have included:
o an Award in respect of currency fluctuation provisions in an Engineering contract (appointed by the President of RICS);
o an Award in respect of the design and construction of paint factory (appointed by the Institution of Chemical Engineers);
o an Award in relation to disputes as to variations, delay and liquidated damages under a construction contract (appointed by the President of the Chartered Institute of Arbitrators);
o an Award in respect of disputes arising out of the construction of a laboratory in Cambridge (appointed by the parties) and
o an Adjudication Decision in relation to the design of a city centre Light Rail infrastructure pursuant to a PFI Agreement (appointed by the parties).
Nicholas has also successfully conducted mediations of construction disputes.
Advisory Work
An important part of Nicholas’ work is advising in relation to practical problems arising out of contracts of all kinds including bespoke contracts and the principal standard form engineering and building contracts including, FIDIC, ICE, I Mech E, I Chem. E, JCT, NEC 3, RIBA and ACE and Government forms of contract.
Nicholas has advised the Institution of Chemical Engineers upon the drafting of the I.Chem.E suite of contracts.
Qualifications and Appointments
Queen’s Counsel
Barrister
Chartered Arbitrator
Accredited Mediator
Fellow of the Society for Advanced Legal Studies London.
M.A. (Jurisprudence) and Bachelor of Civil Law, Oxford University
Papers, Articles and Publications
Nicholas is a popular speaker and writer on relevant subjects. Recent Papers and Articles include:
“Construing Construction Contracts: Principles, Policies and Practice 10 years after ICS v West Bromwich, Is Chartbrook v Persimmon Different or the Same?” Society of Construction Law (London, December 2008; Arbrix Manchester, March 2009; Society of Construction Law, Sheffield, June 2009, Society of Construction Law, Birmingham, February 2010 and to be published in 2010).
“Here” but “Not here”, the significance of Linnett v Halliwells for jurisdiction
Technology and Construction Bar Association Review forthcoming March 2010
“Anti-Pettifogging” The American Lawyer Bar Guide 2009.
“The NEC 3 Contract: How it Works, Potential Pitfalls”. Construction Law Summer School, Cambridge, September 2008.
“Problem Management/Dispute Resolution in Partnering Contracts” Management Procurement and Law. The published Proceedings of the Institution of Civil Engineers, September 2008
“Mediation” Legal Services Industry Briefing Course, Ministry of Justice, European and International Division, June 2008.
“Concurrency of Causes in Construction Contracts” TeCSA/Tecbar Conference 2008, London and Birmingham.
“Making Partnering Work. Lessons from the Front Line of Conflict Resolution” “Leaders in Construction” Conference Dubai, December 2007.
“Keeping the Common Law Out (NEC 3)” Hong Kong Society of Construction Law Conference November 2007
“Games People Play: Tactics in Disputes”. Birmingham, September 2007.
“Causes, Duties and Risks: Determining Culpability for Delay and Disruption in Information Technology Projects” 2007 Journal of Society Computers & Law.
Nicholas is a past Editor of the Building Law Reports (1986 — 1998), of the Technology and Construction Law Reports (1999 — 2002) and of Current Law (1980 — 2000). He is a contributing Editor to the forthcoming 12th edition of Hudson’s Building and Engineering Contracts
Memberships and Conferences
Society of Construction Law
Society for Computers and Law
Arbrix Conference 2009
Society for Computers and Law Annual Conference October 2009
FIDIC International Conference London November 2009