It is perhaps too simplistic to say Construction & Engineering is about 'building stuff', but at its core it does what is says on the tin. However, the legal practice behind 'building stuff' is as complex and interesting as any other area.
From a trainee prospective it is one of the very few areas where you can experience both sides of the divide of transactional and contentious work and it is an area that very neatly dovetails into most of the Firm's practice areas.
It is often said that the only guaranteed things in life are death and tax. Unfortunately, not far behind are disputes in Building Contracts. The reasons behind disputes are many and varied, but the effects generally fall into three categories:
- delays in the completion of projects
- projects going over budget
- the employer not paying the contractor
Needless to say 1 and 2 are not mutually exclusive and 3 often comes into play because of either (or both) of a) and b). More often than not there are concurrent issues in a dispute.
Building Contracts within England and Wales are subject to a statutory right to adjudication. In short this is a rough and ready form of dispute resolution designed to keep money flowing through the construction supply chain, which is of vital importance particularly to sub-contractors towards the bottom of the supply chain. It is often described as a 'pay now, argue later'. Indeed at its shortest an adjudication decision can be delivered within 28 days of referral.
Aside from adjudication, Building Contracts are also often subject to a contractual right for arbitration, a resolution service not dissimilar to the court proceedings, but with the major advantage of being private.
Over and above disputes arising directly from Building Contracts, there are the usual disputes that can arise from any service (i.e. negligence actions against architects, surveyors) and, although more unusually, disputes over insurance coverage etc.
All of the above can make for a varied, and at times time pressured, experience of contentious work.
On the other side of the coin to the contentious work, there is the support given in putting together the contractual documents for building projects. There are many standard forms of contract that are used in the construction industry, perhaps the most prevalent being the JCT suite of contracts and the NEC3 (soon to be NEC4) suite.
Whilst it may seem that it would be easy to simply copy and paste the details of the parties into one of the standard forms of contract, unsurprisingly this is never the case in practice. Whether you are acting for an Employer, Contractor, Sub-Contractor or Funder will colour your client's view in respect of risk profiles created by the contract. Bespoke amendments to these contracts are always negotiated between the parties to reflect this.
The nature of construction projects will often mean that there is more than one contract in play at a time. Normally there will be various appointments of skilled contractors (e.g. Mechanical & Electrical, Civil & Structural, and Architects) either by a Deed of Appointment or by a specific sub-contract. On top of this there will be the need for these parties to enter into collateral warranties for the benefit of an Employer or Funder (as there would be no direct contractual link between the contractor and the Employer/Funder).
Needless to say, as a project increases in complexity, so does the contractual background. For instance, a current matter I am working on involves an anaerobic digestion plant with some seven or eight parties including special purpose vehicle companies and national infrastructure representatives.
So, does transactional work lack the drama and cut-throat nature of a courtroom? Arguably. Is the work complex? Definitely. Is it rewarding when you get your head around a deal and are able to contribute? Undoubtedly.
And the best thing about Construction & Engineering – you can get stuck into both!