Construction & engineering

Contentious construction work involves the resolution of disputes by way of litigation, mediation, adjudication or arbitration. Non-contentious work involves drafting and negotiating contracts and advising on projects, insurance, health and safety, environmental matters and insolvency. Clients range from industry associations, insurers, contractors, architects, engineers, public authorities and government bodies to major companies and partnerships.

When her first set didn’t take her on as a tenant after pupillage, Katie Lee took the route of many junior barristers and moved to a new chambers to do a third six. This time, tenancy followed and she set about developing her practice. Within a couple of years, she was headhunted by Gatehouse, a leading London set specialising in construction and commercial work, as well as related fields such as insurance and property law.

Today Katie is growing in seniority and her practice consists of around 80% construction law and 20% general commercial work. “In construction, the nature of your practice depends on your level of seniority, as well as the chambers you are at,” she explains. “When I was starting out at my first chambers, a large proportion of my work was in teams led by senior barristers on large international arbitrations and domestic cases. At my next chambers, I did a lot of my own small cases, which was good because I could make my own early successes – and mistakes. You develop an understanding of the courts, the judges and how it all works, and gain experience of cross-examination much earlier than you would by working on larger cases as a junior. I was a bit more senior by the point that I moved across to Gatehouse; now I am in court around once a month and spend much more time on paper-based advices and pleadings. There is a large amount of adjudication, for example, which is a  specialist construction dispute resolution procedure that operates almost exclusively on paper.”

Varied clients

Many construction cases can broadly be categorised into disputes over defects and regulatory work, as she illustrates: “In the former category, my recent cases have been about electrifying power lines and defective compaction of ground on housing developments. On the regulatory side, I recently had a toilet case about the compliance of pans and cisterns with water regulations – I think I must have read six different definitions of what toilets are for, when most people would say their purpose is quite obvious,” she laughs.

“Clients vary,” she continues, “but can range from multinational listed construction companies that are the main contractors for very international large projects, right down to a domestic householder who has had an extension installed into their property that has become defective.”

In any construction project, there is a chain of people involved, as Katie explains: “At the top of the chain are often the developers financing the project, for example, a 20-storey hotel. This requires a development agreement, which is then essentially subcontracted out, perhaps to a person or organisation with an interest in the land who then becomes the employer on the project. The employer typically hires a main contractor to design and build the project and the contractor, in turn, will engage architects. Works will then be further subcontracted to specialists who provide plumbing, heating, electrics and all the other elements of the development. With so many contractual levels and parties involved in any given project, there is high potential for disputes to arise.”

Despite the complexity of the contractual arrangements needed to bring projects to fruition, Katie says the causes of disputes are often more prosaic: “Often what happens is that someone involved at the bottom has messed up and the matter gets passed up and up the chain. This can be a serious problem because there is often a deadline for completion in construction works, so any dispute which causes a delay can cause inconvenience and loss to various parties in the chain. The crux of many cases is working out how long the delay is, what losses this has led to, what caused it and who is to blame. This is often complicated by six or seven different things going wrong in a project that overlap – calculating delays and losses can be a bit of a minefield in such cases.”

On your feet

Advocacy is of course a key part of the job and representing clients in court draws many barristers to the profession. Katie’s highlight so far is “the first time I won a three-day trial against a barrister seven years more senior than me. The case was on the cusp and could have gone either way, but I felt that my advocacy was at its best during that closing argument and I could see that the judge was being persuaded by what I was saying, which is not something you feel very often, particularly if you’re inclined to be self-critical, which I think a lot of academic people tend to be because it is a trait that pushes you to be better.

At the Bar it is easy to lack confidence because once you get through pupillage, people stop giving you constructive criticism, as well as praise. As a barrister, you generally only hear people on the other side telling you that your arguments are not very good. Judges rarely give praise – although some do – so you tend to live in a bit of a vacuum without an objective sense of whether you are any good at the job,” she laughs. “It is very lonely being up on your feet, when you know the solicitor who has instructed you as their preferred counsel and the client they have worked so hard for have put their faith in you to deliver.”

If you are resilient, the rewards come: “There is a direct return on the hard work you put in. If you work a 15-hour day, your earnings will be different to someone who chooses to work an eight-hour day, which in law firms is a possibility. Equally, if you want to work part time, no one is going to stop you. The flexibility is good because I have two children, so while I still obviously have to make certain commitments in terms of timing, the paperwork is very flexible and I can fit it around doing things with my children.”

Is there a part of the job she doesn’t enjoy? “The occasional opposing counsel whose submissions are very close to the line or unnecessarily obstructive, which wastes the court’s time and your client’s money. It doesn’t happen often, but when it does it is disheartening because I try to play everything with a straight bat and be a good officer of the court. It often results in the judge being cross with both of you, but unfortunately you can’t tell a judge that your learned friend was being a pain in the bum!”

Flexibility is key

Katie says the biggest challenge facing barristers is “the increasing specialisation of solicitors’ firms. Rather than always going to barristers, firms are now more inclined to keep matters – for example, mediation – in house because they can make more money doing it themselves. Traditional work such as pleadings remains the preserve of counsel for the most part, but it is not uncommon to do the pleadings and then not hear from the solicitors again until trial. Barristers must work more flexibly with solicitors and demonstrate that they are part of the team, rather than someone who can only be instructed for formal set pieces. The Bar is not like it used to be, when barristers were parachuted in at the last minute – there is much more teamwork. It is not just about sitting in chambers, waiting for instructions to come in. Part of the job is about going out and meeting people  and building relationships with them, for example, solicitors on big cases to whom you could be seconded for a long time. You need them to trust you and want to use you as their preferred counsel.”