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David Sears QC

Call 1984 • QC 2003

"Absolutely brilliant, a great advocate and a tenacious fighter."
(Legal 500)

David Sears QC is widely recognised as a leading practitioner in commercial dispute resolution, with a particular emphasis on professional indemnity, construction and engineering, energy and utilities, information technology and insurance law. He has represented a wide range of clients including multinational corporations, government entities, professional advisers and individuals both in the UK and abroad.

As an advocate, David has many years experience in the Technology and Construction Court, the Commercial Court and the Court of Appeal. He has advised and acted for clients in international arbitrations under ICC, UNCITRAL and ad hoc rules as well as in relation to all kinds of domestic disputes. He is an accredited adjudicator and regularly advises on both the conduct of adjudication and the enforcement of adjudicator’s decisions, advising on tactics, preparing statements of case and even appearing at the hearings. Similarly, he is sometimes asked to represent his clients at mediations.

David prides himself on being highly approachable and accessible to clients; on giving practical, objective, straightforward and commercial advice; on being hard working, conscientious and thorough as well as being totally committed and highly tenacious as an advocate.

David is qualified to undertake public access work and has worked for a number of clients.

International Arbitration

David has advised and acted for clients in international arbitrations under ICC, UNCITRAL and ad hoc rules as well as in relation to all kinds of domestic disputes. He is a Fellow of the Chartered Institute of Arbitrators.

Selected Cases

  • Appearing on behalf of an M&E sub-contractor in an ad hoc arbitration in the Gulf in a complex claim for loss and expense, delay and disruption in connection with the construction of a major new shopping mall.
  • Appearing in an ad hoc domestic arbitration on behalf of the contractor in a long running dispute with London Underground arising out of a contract for the installation and commissioning a new communication system on the underground network.
  • Appearing in an ad hoc domestic arbitration for a dispute arising out of a contract for the partial design and construction of repairs at a jetty known as the ‘New Jetty’ at St Peter Port, and for the installation of a new cathodic protection system.
  • Appearing on behalf of the Respondent in an ad hoc arbitration hearing in relation to a claim made by the main contractor against a glasswork sub-contractor on a major construction project for the Ministry of Defence, in which it was alleged that the sub-contractor’s delays had caused delay and disruption to the main contractor’s business and operations, over a long period and wide range of activities.
  • Instructed to represent one of two joint venturers in an ICC arbitration defending a claim for liquidated damages by the owner of a power station for late completion c€70million.
  • Instructed to act for the employer in a domestic ad hoc arbitration for a claim against the employer arising out the allegedly wrongful termination of the contract to construct and commission new nuclear waste disposal facilities at Sizewell B.
  • Appearing on behalf of the main contractor in an ICC arbitration to resolve its claim against the sub-contractor for breach of contract in connection with the installation of 650m of 8″ pipeline by horizontal directional drilling under the Keban Lake at Elazig in Eastern Turkey.
  • Acting on a claim made by an earthworks sub-contractor against a well-known contractor in connection with the construction of a section of the A303 for damages for disruption resulting from the failure on the part of the main contractor to provide proper programming information and/or supplies of stone etc. The hearing culminated in an application to remove the arbitrator for misconduct.
  • Defending a claim made by the Main Contractor in an ICC arbitration for additional payment for work carried out in connection with the engineering, supply and installation of a submarine telecommunications cable system linking Italy, Turkey, Ukraine and Russia.
  • Advising and acting for the Ministry of Defence in an international arbitration to resolve its dispute over payment with the suppliers of accommodation for British Forces in Croatia.
  • Appealing an arbitrator’s award to the High Court on the grounds that he was obviously wrong in law when holding that the liquidated damages provision in the relevant contract constituted a penalty.

Commercial

David has significant experience in commercial work and commercial dispute resolution. Almost all his construction cases involve questions of contract interpretation, and many involve disputes concerning performance bonds, warranties and guarantees. His cases often raise issues of insolvency and administration. Most (if not all) of his cases concerning insurance disputes start life in the Commercial Court. He has a wide range of experience of all forms of ADR, including mediation, early neutral evaluation and expert determination.

Selected Cases

  • Advising Canary Wharf Contractors Plc on the terms and effect of a performance bond.
  • Advising a sub-contractor on the terms and effect of multiple warranties given to the employer and other sub-contractors in relation to the allegedly negligent design of a large shopping centre car park.
  • Acting for a defendant contractor who was threatened with winding up as a result of a failure to pay an adjudication award.
  • Acting for an insured architect in relation to his claim against insurers to be entitled to professional indemnity insurance cover.
  • Acting for the Contractor in relation to a building project involving the redevelopment of the former post office building at Royal Mail Street, Birmingham, West Midlands. The dispute concerned the operation of the contractual payment provisions and the question whether the Contractor was estopped from relying upon the strict terms of those provisions to enforce payment of interim payments of more than £5.5 million.
  • Advising a well-known concrete supplier in relation to a dispute concerning some allegedly defective concrete supplied for use in connection with the construction of a 6m3 suspended transformer slab at Waterloo Underground Station and, in particular, whether the company’s standard terms and conditions were incorporated into the contract and if so whether they successfully excluded liability for the alleged defect.
  • Advising Nokia Corporation in connection with its dispute with Siemens AG arising out of the terms and implementation of a framework agreement for the takeover and maintenance of a mobile telecommunications network.
  • Acting for Carillion in its dispute with a cladding sub-contractor. Carillion successfully claimed that it had been forced to pay £3.2m under economic duress from the sub-contractor as a result of its refusal to deliver the cladding in time to allow Carillion to complete the main contract works.

Construction & Engineering

David has been listed for a number of years in both Legal 500 and Chambers as a leader in the field of construction disputes. He has over 20 years’ experience involving the whole range of disputes that arise in connection with construction and engineering projects including disputes as to contract terms (including all principal main contracts including JCT, ICE, FIDIC, NEC, GC/Works, I CHEM E, sub-contracts including DOM/1, DOM/2 and numerous bespoke forms used in international and domestic construction, energy and infrastructure projects), loss and expense claims, delay and disruption, defective work and final account disputes.

Project Work

The disputes have included many different types of construction and engineering projects including highways, railways, power stations, process plants, waste treatment plants, sports stadium, bridges, tunnels, shopping centres, office blocks, car parks and residential developments. He has also been involved in a number of technical engineering disputes concerning defective equipment, machinery and systems of all kinds.

Energy & Utilities

David also has wide experience acting for employers and contractors on disputes arising out of the design and construction of, among others, pipelines, power process and waste water treatment plants.

Public Procurement

David has also acted for both public bodies and contractors on all aspects of public procurement and publicly-funded tendering procedures, not only advising them in connection with the tendering process and practical challenges which they face and the steps to be taken to avoid breaching the regulations, but also acting for them when the tendering process goes wrong and an aggrieved tenderer wants to make a claim (or even to halt the process).

Transport

David has represented both employers (e.g. government departments, local authorities etc) and also contractors in connection with disputes arising from road, rail and tunnel building projects.

IT & Technology

David has been instructed by suppliers and contractors in relation to claims concerning telecommunication systems and computer software.

Selected Cases

  • Acting for the contractor in a long running dispute with London Underground arising out of a contract for the installation and commissioning a new communication system on the underground network.
  • Acting for the contractor in its dispute with London Underground arising out of a contract for the upgrading and long-term maintenance of a number of London Underground lines.
  • Acting for one of two joint venturers defending a claim for about €70million in liquidated damages following the delayed completion of a new power station as a result of problems with the geology of the site as well as the tunnelling and maritime works which had to be completed.
  • Acting for Vinci Construction (UK) Limited on its claim for damages for breach of the EU Procurement Regulations in connection with the award of a contract by Luton Borough Council for the construction of a mainly guided bus way between London Luton Airport and Houghton Regis.
  • Acting for an unsuccessful contractor on its application for an injunction to restrain the award of a contract to the successful tenderer on the grounds that there had been numerous breaches of the EU Public Procurement regulations in the course of the tender process.
  • Acting on behalf of the Highways Agency in a dispute with the Contractor concerning workmanship, delay and disruption in connection with the construction of a twin road tunnel for the A27.
  • Acting for the Employer against the engineers retained in connection with the construction of the DLR extension to Greenwich arising out of an explosion during the course of the tunnelling works.
  • Acting in an adjudication for the sub-contractor in its claim against the contractor for payment for works done in connection with the design, installation, testing and commissioning of telecommunication cable work and route work for a section of a new fixed telecom network which was being installed for Network Rail.

Insurance & Reinsurance

David advises regularly on the construction of insurance policies, most often in connection with coverage issues in connection with professional indemnity claims and construction disputes.

Selected Cases

  • Advising a contractor in connection with its claim against its insurers for an indemnity in respect of a claim made against the contractor for the allegedly negligent preparation and production of a specification for concrete to be used by sub-contractors.
  • Advising insurers on the scope of a notification of circumstances by an insured contractor and the extent of cover under the policy in relation to the allegedly defective design of a major shopping centre car park.
  • Acting for an insured architect in relation to his claim against insurers to be entitled to professional indemnity insurance cover.
  • Acting for insurers in their defence to a claim made by an insured to be entitled to be paid benefits under a Critical Illness / Permanent Health Policy.

ADR

David is an accredited Mediator (both by TECBAR and ADR Chambers) and a Fellow of Chartered Institute of Arbitrators.

He has acted as sole mediator in a number of cases. Given his expertise in construction, most of the mediations he has conducted have been in that field, but he has also successfully mediated disputes in other areas, including professional negligence claims against solicitors, valuers and surveyors.

Professional Liability

David has been listed for a number of years in both Legal 500 and Chambers as a leader in the field of professional negligence where he has been said to be: ‘an able and very approachable silk’; ‘excellent and incredibly hard working, reliability itself, he handles a seriously heavy case-load’; ‘he always retains his good humour despite the weight of work that lands on his desk’ and ‘absolutely brilliant, a great advocate and a tenacious fighter’.

For over 25 years he has specialised in professional negligence claims, acting both for claimants and also for defendants and their indemnity insurers. Consistent with his work in construction law, a large part of his professional negligence practice has involved cases concerning claims made against building professionals, including engineers, architects, design contractors and project managers.

However, since the start of his career at the Bar, he has also been involved in numerous cases concerning claims made against other professionals, including valuers, surveyors, solicitors, insurance brokers, accountants and auditors.

Construction Professionals

David has a great deal of experience in the professional negligence field, acting both for claimants and also defendants and their indemnity insurers in relation to claims brought against the whole range of construction industry professionals including engineers, architects, design contractors and project managers.

Lawyers

David has acted for both claimants and defendants in a number of cases involving claims against lawyers, including claims arising from drafting transaction documents, mismanaging their professional practices, mortgage fraud and the negligent conduct of litigation. He has also prosecuted cases against barristers on behalf of the Bar Council/Bar Standards Board.

Selected Cases

  • Acting on behalf of the defendant architects (a joint venture between HOK Sport Limited and Foster & Partners Limited) in a potential claim for professional negligence in connection with the design and supervision for the construction of the new Wembley Stadium.
  • Acting on behalf of the employer in relation to a potential claim (valued at approximately £8 million) against the architects engaged to provide design consultancy services in connection with a project known as Liverpool Arena and Convention Centre.
  • Defending an architect against a £7 million claim for negligence in the design and supervision of the construction of a multi-storey car park.
  • Defending a claim brought by the Main Contractor against the Engineer for loss and damage suffered as a result of delay and disruption allegedly caused by the negligent design of a new viaduct on the A13.
  • Defending a claim made against the consulting engineer in respect of damage suffered as a result of ground movement caused by the excavation of a cutting at the foot of the hill during the construction of the A4042 near Newport in Wales.
  • Defending the designers against a claim for the allegedly negligent design and supervision of new ventilation and comfort cooling at the University premises, including all associated mechanical, electrical and builder’s work in connection with the installation.
  • Acting for the Employer on its claim against the Architects and Project Managers for loss and damage allegedly suffered as a result of the mismanagement and negligent supervision of a construction project for a substantial new shopping centre in South London.
  • Acting on behalf of the Claimant on a claim for loss and damage (exceeding £50m) resulting from the Defendant solicitors’ negligence in drafting a contract for a new power station in China.
  • Advising on a potential claim made against solicitors arising out of the restructuring of a private company and the financial consequences.
  • Defending a claim made against solicitors (co-defendants with a firm of accountants) in respect of the preparation and drafting of a Share Prospectus
  • Acting for defendant solicitors in a claim for loss and damage arising out of their handling of various licensing applications.
  • Acting for defendant solicitors in a claim for loss and damage arising out negligent advice concerning a loan transaction.
  • Acting for defendant solicitors in a claim for loss and damage arising out of negligent advice concerning rights of way and planning matters.
  • Advising solicitors in relation to a claim for negligence in the conduct of litigation by allowing the limitation period to expire.

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