University: Pembroke College, University of Cambridge
Degree: English literature
Contentious construction work involves the resolution of disputes, principally through arbitration, litigation, or mediation. In addition, the construction world has some distinctive dispute processes of its own including adjudication and dispute boards. Non-contentious construction work involves strategic advice on how to structure the parties’ roles and risks in the project, procurement processes by which parties bid to win contracts, drafting and negotiating those contracts and advising on related matters including financing, insurance, health and safety, environmental matters and insolvency. Clients range from developers, project owners, insurers, contractors, architects, engineers, industry associations, public authorities and government bodies to major companies and partnerships.
A good piece of advice for those hoping to embark on any training contract is to be open minded about the seats you undertake and the area in which you ultimately qualify. Angus Rankin was right at the end of his training when he set his sights on a career in construction and engineering disputes. “My fourth and last seat was in construction, during which I worked on a case involving an incident aboard a deep-water drilling ship off the coast of West Africa – I knew then that this was what I wanted to do,” he recalls. “As well as doing a lot of pre-electronic disclosure, I enjoyed working closely with both technical and quantum experts. That case and the excellent mentoring I received from the associate, senior associate and partner in that team were big influences on me.”
Following a secondment to the legal department of Mitsubishi Heavy Industries (MHI) in Tokyo, then several years in an MHI subsidiary’s London office (latterly as general counsel and company secretary), Angus returned to Hogan Lovells as a partner in 2017, re-joining the construction and engineering disputes team where he had completed his training a decade before. Today he acts on disputes arising from largescale infrastructure projects, principally in the power sector, all over the world. The construction disputes team at Hogan Lovells spans a range of other sectors, particularly offshore wind, rail and airports.
There is a strong international flavour to the team’s work, meaning that Angus and his colleagues represent their clients in a range of forums: “At any one time, one of our partners might have several procurement challenges pending in the High Court, another might be in a mediation, another about to launch an adjudication, or – increasingly – giving the client an ‘early case assessment’ when signs of trouble first start to appear on the project. However, given the large scale and cross-border nature of the work we do, more often than not international arbitration is the parties’ preferred method for resolving disputes that don’t settle.”
Cases can usually be traced to three key areas of contention. “Although we work for all sorts of clients on all sorts of projects in many different countries, all the disputes we work on tend to boil down to a difference over quality, time and/or money,” he explains. “The types of problem you might encounter when having work done on a house are the same ones on mega-projects, albeit scaled-up in terms of value and the complexity of the facts. But at their simplest, the parties’ complaints can be reduced to, for example, whose fault is it that the works are not finished by the agreed date; the quality of the works is considered to be substandard; the contractor wants to be paid extra for something its customer considers to be already included within the initial agreed price, and so on.”
“Like all litigators, we have to be experts in general common law such as contract, tort, agency and privilege, but also in international arbitration and statutory adjudication, which is very different to court litigation”
Construction disputes tend to be technical and often document-heavy: “There is often a vast number of technical drawings, formal and informal emails from different parties involved in the project, formal letters and meeting minutes, which help us to piece together the story of what has gone wrong in the project. That in itself requires a lot of project management – the job must be done thoroughly but in an efficient and cost-effective way for the client.”
In some cases, the risks facing clients can be even graver than potentially serious financial losses. “One of the most interesting cases of my career was not a commercial dispute, but a criminal case arising from a project in Africa,” says Angus. “It was a serious and difficult case that would have meant personal liability for one of our client’s executives if we lost, and it was heard in a local criminal court. I am still very proud of the team effort across our international offices that went into securing a good outcome for the client in that case.”
However, an ideal outcome is not always possible, and one of the least enjoyable – but necessary – aspects of his role is “having to tell clients that they have a low prospect of success – we work extremely hard to try to find any and all angles to help our clients succeed, so when you have to tell them that their options are limited, or that they might have to pay their adversary a significant sum of money, it’s part of the job, but not an especially enjoyable part. The important thing though is never to overstate the client’s case to them because it is much better for clients to go into something with their eyes open, or sometimes decide not to take the dispute further.”
Fossil fuels make way for renewables
Looking at the current state of the construction and engineering sector, he observes that “whatever challenges our engineering clients are going through soon have a knock-on effect for us. For example, with the increasing change from fossil fuels to renewables, the type of power stations that clients are involved with has changed. Whereas previously clients might have been engineering oil rigs and processing plants, now they are much more involved with wind turbines and solar power.” Another key concern for the team’s clients is staying on the right side of increasingly complex regulation. “Our clients are operating in a much more regulated global environment than they used to be, for example, having to navigate export sanctions and embargoes”, he observes. “If it becomes difficult to import steel or machinery across certain borders, this will have an effect on clients’ ability to manufacture abroad, which may lead to disputes over an increase in costs or delay to the project.”
To succeed in this area, “very high technical ability” is essential. “Like all litigators, we have to be experts in general common law such as contract, tort, agency and privilege, but also in international arbitration and statutory adjudication, which is very different to court litigation. We also work across the globe with local counsel in the country where the project is located or the judgment or arbitral award will be enforced,” Angus explains. “In addition, there is construction law itself. English construction law has developed over hundreds of years, with changes being made on a near-daily basis, dealing with how risks are allocated between the owner and the contractor.”
Commercial awareness is a vital skill for anyone hoping to succeed in this area, Angus advises: “Spending time in the client’s business has been a huge boost to my commercial awareness. This happened first as a trainee on client secondment in the UK, then as a mid-level associate on secondment to a client in Japan, and again later when I left private practice for nearly four years in industry. I recommend grabbing any opportunity to experience in-house legal work. You will never look at your own work in the same way once you have seen how law firm advice is received by in-house counsel and the business teams they serve. Anticipating what the client’s practical business objectives are is one of the ways lawyers transform their work from something merely ordinary into something far more useful to the client. If you are still studying, you can already make a start by reading business news – go into the detail of the stories and keep up with the story as events unfold, don’t just scan the headlines before your training contract interview! That deep reading will start to build up your instincts for what factors bring success or failure in corporate transactions, commercial disputes, and other situations you’ll encounter in your career.””