In this article (which is based on a recent panel discussion delivered virtually for the Bar Council’s Pupillage Fair online), Mathias Cheung explains the realities of a construction law practice and how this differs from other civil law practice areas. He also provides advice to anyone wishing to become a civil law barrister, in particular the skill sets needed for this area of law.
Mathias’ area is practice is general commercial, with a specialism in construction and technology disputes. Mathias obtained his LLB from King’s College London and read for the BCL at Magdalen College, Oxford, before completing the BPTC at City Law School, London.
What is your practice like as a construction and infrastructure barrister?
A construction barrister is a specialist commercial practice, we cover construction, infrastructure and transport, energy (including renewables), technology and a variety of disputes arising from those types of projects.
Construction law involves applying general principles of contract and tort law to very specific facts arising from the specific context of a construction/infrastructure/energy project. It may sound specialist or niche, but in fact it is quite general in the sense that lots of these legal principles that we apply are common across all civil law practice and therefore of much wider interest. Indeed, many of the leading cases which regularly feature in contract and tort law textbooks arose from construction disputes: see e.g. Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1993] UKHL 4).
When people think construction barrister, they often think they are based on a construction site somewhere which does not sound glamourous at all, but in reality, it is much more commercial (although we do often get the opportunity to visit sites and projects to better understand our client’s case).
My area of practice is a healthy split of 70% advisory / written advocacy and 30% oral advocacy, and it is quite typical of the commercial bar to have this type of split. Unlike some other civil law practices, you do not undertake any court work during the second six months of your pupillage, which is a consideration you may want to take into account when applying for pupillage. That being said, Chambers does offer sufficient training by organising oral advocacy exercises before current/retired judges throughout the course of pupillage.
There is a huge spectrum of disputes in construction practice. It ranges from smaller domestic residential disputes (for example your granny’s conservatory falling down after some extension works) to much larger multi-million-pound, multi-partite disputes. By way of illustration, I have worked on matters such as the Rolls Building (which houses the Business and Property Courts), Gatwick Airport, Legoland hotel, and waste-to-energy plants – there is a diverse range of cases that come through the door.
How is construction and infrastructure practice different from other civil law areas?
In terms of the type of oral advocacy that you do get to undertake personally as a junior tenant, there is a healthy blend of County Court and High Court advocacy from the very early days of practice. The reason for that is the statutory process of adjudication within construction disputes (which is like a mini-arbitration), where you appoint an adjudicator typically based on a statutory procedure under the Housing Grants, Construction and Regeneration Act 1996, and it usually wraps up within 28 days (subject to extensions by the parties) based on written submissions. That procedure means that you produce a temporarily binding decision which is enforceable using the summary judgement procedure. You can enforce that judgment in the High Court (specifically the Technology and Construction Court) and there is a growing body of case law (on issues of jurisdiction and natural justice arising from the adjudication process), so you have the opportunity to develop that area of practice if you want it as a junior tenant.
There is also a significant international dimension to our work. There is a particular shortage of experienced, specialist (junior) construction barristers in certain jurisdictions, including places like Hong Kong for example. Therefore, construction law is a great opportunity to build an international practice in the Middle East and Asia.
What are the recent important matters for construction law?
There are several high-profile issues in the public domain that are of particular interest to the infrastructure legal sector:
- The insolvency and collapse of Carillion, the British multinational construction and facilities management services company which was one of the largest contractors in the UK, which has triggered wider concerns as to retention of payment and insolvency in the industry and the need for legislative reform;
- The ongoing Grenfell Tower Public Inquiry (in which certain members of Chambers are currently acting);
- Crossrail / Elizabeth line project, which has reportedly been suffering from delays and cost overruns and thus given rise to various disputes; and
- COVID-19 and its impact on the viability of construction sites and existing construction contracts, for example how it relates to force majeure, claims for extensions of time and loss and expense, termination etc.
What are the skills that you need to succeed to practice in civil law, in particular construction law?
To succeed in this practice area, you will require the same sort of skill sets that you generally hear about across all civil law practices, for example advocacy skills, communication skills – all of those are just as applicable. However, I would emphasise six main points which are of particular relevance to this specialist area of practice:
- An appetite to learn new things. Construction law often crosses over with scientific and engineering issues. You will be learning new things as you go along in cases, helped by technical experts of course, but you should definitely have an appetite to learn and get up to speed on technical disciplines.
- The ability to digest a lot of information in a short period of time. It is a document-heavy type of practice which can be a steep learning curve. You do get used to this over the course of pupillage and tenancy, but it is definitely something to consider if you do not particularly enjoy reading!
- Computer literacy is important. You are often dealing with a lot of spreadsheets and numbers and are interrogating programmes and drawings which involve specialist computer programmes and skills. You may also need to use these skills when presenting information to a tribunal and making the information accessible.
- Analytical skills are important as you often have complex contractual documents coupled with a complex set of facts, and you have to apply the law to the facts in those circumstances. Having a forensic mind is important in this aspect.
- Client management and work ethic are important. It applies generally across all civil law practices but in particular when it comes to construction disputes, as there are often very tight timeframes (e.g. with adjudications) and lots of urgency on site – people need timely answers. You need to be responsive and work hard.
- Willingness to go the extra mile. This relates to the point above with regards to client management, and it sets you apart from other practitioners as your practice develops. When applying for pupillage, it is important to show that you have the capacity to do what is required when asked by the client.
What is your advice to anyone who wishes to have a specialist commercial practice of construction law?
- Know your interests and your strengths.
- Know the industry, the markets and the commercial realities for your clients.
- Know your legal and industry developments, sign up for newsletters and daily updates (e.g. Lexology).
- Know the chambers you are applying to, particularly the practice of their junior tenants, and also whether they have an offshore practice if that is something that appeals to you.
- Make your skills known to chambers, and indeed the world! It is important to hone your written and oral communication skills, and to showcase them by debating, mooting and writing journal articles and/or law blogs.
- Know that there is always a variety of areas of practice (and indeed mixed practices), so you should diversify your electives if you are still at university and explore your interests. That is particularly important if you do not know yet what specific area of law you want to go into.
Were you interested in civil law during pupillage and did you have experience in this area of law before applying to Atkin Chambers?
I did have an interest in having a civil practice since my early days in university, rather than say a criminal practice. However, I did not have a particular focus on or expertise in construction law prior to pupillage, although I did have some previous exposure to construction disputes. Indeed, I did not do a mini-pupillage at Atkin Chambers before applying, and I was looking at pupillage at commercial sets more generally.
You do not need to specialise too early on, especially if you are not sure what area you want to practise in – it is better to keep your options open, and you can consider e.g. common law sets which offer a mixed practice. Many barristers start off with a broad civil practice before specialising in a particular area, and it ultimately depends on what suits you best – there is no single “one size fits all” approach.
