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.
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.
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.
There are several high-profile issues in the public domain that are of particular interest to the infrastructure legal sector:
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:
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.
This paper was written by James Howells QC for the Society of Construction Law (Singapore)…
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