Experience as a lawyer
Since July 2013, I have practised at the independent bar, based near Adelaide, South Australia, first from Howard Zelling Chambers and from November 2014 as an International Member of Keating Chambers in London, which is widely recognised as the leading set of specialist construction law barristers in the common law world; see contact details.
Between 2006 and 2013, I was a partner at the specialist Adelaide law firm of Fenwick Elliott Grace. My role was largely as in-house counsel, advising and acting as advocate on a range of construction and energy cases throughout Australia.
Between 1980 and 2003 I was founding and then senior partner of Fenwick Elliott LLP, based in London but acting on construction and energy cases throughout the world, typically of high or very high value. This experience of dispute resolution involved not only traditional litigation and arbitration but mediation, mini-trial, hybrid ADR, adjudication, expert determination and other techniques. Fenwick Elliott LLP is now the largest construction & energy law firm in the UK, and I retained my association with the firm as a consultant until 2014, when I joined Keating Chambers.
Before that, my first three years of post-qualification experience in the 1970s was with what is now Pinsent Masons (then Masons). That firm now has a more general practice; my own experience there was almost entirely in construction law.
I was first appointed to what was, in effect, a one-man Dispute Adjudication Board, in 1999, for a nuclear power project in the Ukraine (project value approx $100 million). In 2014 I was appointed to chair, and now chair, a dispute avoidance board for a PPP rail project in New South Wales (project value approx $2 billion).
I completed the DRBF Advanced Workshop in 2013.
My experience of the avoidance and resolution of disputes on large projects around the world is well-tailored for Dispute Review Boards and Disputes Avoidance Boards.
I am registered as an Adjudicator in the Northern Territory under section 52 of the Construction Contracts (Security of Payments) Act 2004 (NT), and now sit as an adjudicator in that capacity.
Chapter 5 of my book, Building Contract Disputes: Practice and Precedents is devoted to adjudication, a process of resolving disputes in the construction industry first given statutory force in England and Wales by the Housing Grants, Construction and Regeneration Act 1996. In short, the system involves the resolution of any construction or engineering dispute within about 6 weeks. The loser has to write a cheque, but has the right to re litigate or arbitrate in full; in practice, this right is rarely exercised and the parties are content to abide by the adjudicator’s decision.
Pre-1996, I was involved in the UK Government consultation for and contributed to debate of the legislation, and was the principal draftsman of the ORSA Adjudication Rules, the first and, for 2 years, the only compliant standard form set of rules. I have trained adjudicators for the CIoB, TeCSA and JANA, and have been accredited as an adjudicator by the CIC, CIoB, TeCSA and the Government of the Northern Territory of Australia. Whilst in full time practice as a solicitor in London, I represented one of the parties or fulfilled the role of adjudicator many times, in disputes for very substantial sums.
I have for many years had a particular interest and expertise in delay analysis. In the 1980’s (before the advent of the later generations of commercially available software such as Primavera) I led the development of a software package specifically designed for retrospective delay analysis purposes. Since that time I have led a number of delay analysis teams, and have recently prepared and presented a Masterclass on the topic in Adelaide.
Chapter 4 of my book, Building Contract Disputes: Practice and Precedents is devoted to ADR (alternative dispute resolution) techniques, including mediation, mini-trial and hybrid techniques.
I have been accredited as a mediator by IAMA and CEDR, and remain available for suitable adjudication or dispute review board work, particularly in Australia and Asia-Pacific.
Chapter 11 of my book, Building Contract Disputes: Practice and Precedents is devoted to arbitration, including international arbitration under the ICC Arbitration Rules. I have conducted many arbitration procedures on behalf of clients both domestically in Australia and the UK and in the international ICC arbitration process.
I have chaired a number of appeal and disciplinary tribunals for Croquet Australia
Chapter 7 of my book, Building Contract Disputes: Practice and Precedents is devoted to the English Construction and Engineering Pre-Action Protocol, of which I was the original author. In 2013, I sat on the subcommittee that led the introduction of a similar protocol in South Australia.