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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 recognized 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.

David is ranked as a leading silk in both Chambers & Partners and Legal 500 in Construction and Professional Negligence. He has been described as ‘one of the best advocates who is loved by clients’; ‘an experienced advocate who is able to grasp complex and detailed matters quickly and effectively’; ‘very bright, calm, confident and gives clear advice’.

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. He has been involved in a number of leading cases concerning adjudication, including Harding v Paice and Adams Architecture v Halsbury Homes. He is also an accredited mediator by TECBAR and ADR Chambers.

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 regularly receives instructions direct from contractors and employers.

International and Domestic 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

International

    • Appearing on behalf of an M&E sub-contractor in an arbitration in the Gulf under DIAC Rules in a complex claim for loss and expense, delay and disruption in connection with the construction of a major new shopping mall.
    • Instructed to act on behalf of the main contractor in an arbitration under DIAC Rules arising out its claim for non-payment of over £35 million by the employer following the completion of a major residential tower block in Dubai Marina
    • Acted on behalf of the employer in an ad hoc arbitration in Dubai in a dispute with the main contractor concerning claims for lengthy extensions of time and additional payment on a project for the construction of a prestigious luxury hotel
    • Instructed on behalf of the consultant engineer in an ICC arbitration in respect of a £25 million claim arising out of the design and construction of a new university in Qatar.
    • Instructed to represent one of two joint venturers in an ICC arbitration defending a claim for £70 million liquidated damages by the owner of a power station for late completion.
    • Appearing on behalf of the main contractor in an ICC arbitration to resolve its claim for more than £25 million against the sub-contractor for breach of contract in connection with the installation of 650m of pipeline by horizontal directional drilling under the Keban Lake at Elazig in Eastern Turkey.
    • 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.
    • Instructed to act on behalf of the main contractor in an arbitration in Geneva under the Swiss Arbitral Rules in its dispute with its subcontractor over the supply of a defective transformer which suffered catastrophic failure when commissioned for use in a power station.
    • Acted on behalf of the plant owner in an ICC arbitration in its dispute with the supplier of a defective rectifier transformer supplied and installed for use in an aluminium smelting plant.
    • 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.
    • Appointed as arbitrator in a dispute concerning the construction and operation of waste water treatment plant in Turkey.
    • Appointed as arbitrator in a dispute concerning the construction of a new hotel in Dubai.
    • Appointed as arbitrator in a dispute concerning the delayed construction of an IT facility in Ireland.

 

Domestic

  • Appearing in an ad hoc domestic arbitration on behalf of the contractor in a £ multi-million dispute with London Underground arising out of a contract for the installation and commissioning a new signalling and 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 to 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 and cladding sub-contractor on a major construction project for the Ministry of Defence.
  • Acting on a claim made by an earthworks sub-contractor against a well-known contractor for delay and disruption in the construction of the A303 road in the west of England.
  • Appointed as arbitrator in a dispute between the Secretary of State for Defence and a firm of lawyers over the allegedly negligent drafting of a contract for the privatization of a water supply and the treatment of sewage for over 3,000 MOD sites.
  • Appointed as sole arbitrator in a dispute concerning the construction and operation of a new windfarm.
  • Appointed as sole arbitrator in a dispute concerning the allegedly defective piling of a new pier.

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, airports, 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. He is the author of the chapter in Emden’s Construction Law on EU procurement law.

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

Project Work

  • Acting for the contractor in a long running dispute with London Underground arising out of a contract for the installation and commissioning a new signalling and 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 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.
  • Instructed on behalf of the employer in connection with its claim against the M&E designers of the air conditioning installationfor a new terminal at Heathrow Airport
  • Acting on behalf of the design and build subcontractor in a dispute with the main contractor concerning the late delivery of a major new baggage handling system for the South Terminal at Gatwick Airport
  • Instructed on behalf of the M&E subcontractor in connection with a dispute with the main contractor and employer arising out of the M&E works at Victoria Station required for the Crossrail Project
  • Acting for the main contractor in a dispute with the local authority employer arising out of the construction of a new hospital in South Wales

Energy & Utilities

  • Acting for the employer on a £ multi-million arising out the design and construction of a new sewerage treatment works for the city of Leeds.
  • Acting for a well known energy supply company in its dispute with a landowner arising out of the construction and operation of a new windfarm on his land.
  • Acting for the engineer in a claim made by an energy company for negligence in relation to the design of the foundations for a windfarm in Scotland.
  • Acting for the employer in its claim against the main contractor in a dispute arising out of the defective installation of the pipework in a fuel processing plant in South Wales
  • Acting for the employer in its claim against both the engineer and contractor in a dispute arising out of the construction and operation of a new plant to extract methane gas from a refuse tip in Leicestershire.

Public Procurement

  • Acting for an unsuccessful tenderer 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 for an NHS Trust in the defence of a claim brought by an unsuccessful tenderer for the supply of diagnostic equipment for use in London hospitals and on its successful application to lift the automatic suspension on the making of the contract with the successful bidder.

Transport

  • 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 on a claim made by an earthworks sub-contractor against a well-known contractor for delay and disruption in the construction of the A303 road in the west of England.
  • Instructed on behalf of a design joint venture in its claim for non payment of fees and an extension of time for the provision of detailed design work in connection with the new A465 trunk road in South Wales.
  • Acting for a 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
  • Acting for the employers in a claim against the engineers for negligence in the design and supervision of tunnelling works on the DLR near Greenwich.
  • Acting on behalf of the engineers in a dispute with the employer arising out the installation of a new signaling system for the rail network in South Wales.
  • Representing one of two joint venture partners in a dispute concerning responsibility for problems in the design and construction of a new tram system in Nottingham.
  • Acting for the Secretary of State for Transport in a dispute with the main contractor concerning the delay and late opening of a bascule bridge on a major road in East Anglia.

IT & Technology

  • 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 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.
  • Acting for a design and build contractor in a dispute with the employer arising out of a project to construct and fit out a new data centre for Microsoft in Ireland
  • Acting for the Secretary of State for Defence in a dispute with a contractor over the supply of a new IT system for the delivery of virtual artillery gunnery training.

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 widely-recognised 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

Construction Professionals

  • Acted in behalf of the successful respondent in a much publicised appeal in which the Court of Appeal held that an architect who had provided her services gratuitously to her neighbours nevertheless owed them a duty of care (Lejonvarn v Burgess [2017] EWCA Civ 254
  • 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 £multi-million 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 M&E 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 a claim brought by an architect for payment of his fees on the design of a new residential development on the site of the Marshall Street Baths in Westminster which has been met with a counterclaim for loss suffered as a result of the architect’s alleged negligence in the design.
  • Instructed on behalf of engineers to defend a claim brought for allegedly negligent design of the structural foundations of a major new business park in Essex
  • Instructed on behalf of the City Council in their £ multi-million claim against the architect for the negligent design of the roof of the new Aquatic Centre in Sunderland.

Solicitors

  • 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.

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 of a performance bond and whether it could be enforced.
  • Advising a well know energy company in relation to a dispute with the owner of a windfarm site concerning the proper construction and effect of their agreement for calculating power output and revenue sharing
  • 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 an insured architect in relation to his claim against insurers to be entitled to professional indemnity insurance cover.
  • 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 in which Carillion successfully claimed that it had been forced to pay £3.2m under economic duress from the sub-contractor.
  • Acting for a liquidator in a dispute with a contractor as to whether the company in liquidation could bring a claim in adjudication.
  • Advising an M&E subcontractor in connection with its claim for outstanding payments following the liquidation of Carillion and in particular its potential claim against the banks operating Carillion’s early payment scheme.
  • Acting for the funders in their bid to prevent an NHS Trust from terminating a PFI Contract in a dispute which turned on the proper construction of termination provisions in the PFI Contract and the Funding Agreement.

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 the lead insurer of the Malaysian Bar Professional Indemnity Scheme in its dispute with London Reinsurers concerning its entitlement to be indemnified in respect of a MYR 7 million claim against one of its members
  • Instructed on behalf of insurers in a £10 million dispute with its insured as to the insurers’ rights to bring a subrogated claim against one of the insured’s sister companies.
  • Acted on behalf of the insured business owners in their claim against insurers who had refused an indemnity in respect of significant losses resulting from the total destruction of the insured’s waste recycling plant by fire for alleged breach of condition.
  • Acting on behalf of the insured building owners in their successful claim against their insurance brokers for negligence in failing to advise on policy terms on renewal and in failing to arrange suitable cover.
  • Acting on behalf of the insured design and build contractor in his successful claim against insurers who were refusing an indemnity for the cost of reconstructing a major retaining wall which had collapsed.
  • Instructed on behalf of the insured specialist building contractor in his successful claim against insurers who had refused to indemnify the insured in respect of damage caused to neighbouring buildings as a result of excavation works for a new basement in Chelsea.
  • Advising insurers on policy interpretation and coverage issues in relation to a £50 million claim made by an insured contractor in relation to the allegedly defective design of a major shopping centre car park.
  • 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.
  • Acting for an insured architect in relation to his claim against insurers to be entitled to professional indemnity insurance cover.

ADR

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

He has acted as 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. Approximately 90% of the cases he has mediated have either settled at mediation or within a month thereafter.

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Qualifications


  • MA Oxon
  • Fellow of the Chartered Institute of Arbitrators
  • Accredited mediator TECBAR and ADR Chambers
  • Accredited adjudicator TECBAR

Publications


  • Author of the chapter on Public Procurement in Emden’s Construction Law
  • Contributor to the section on Delay & Disruption, Liquidated Damages and Penalties in the 12th edition of Hudson’s Building and Engineering Contracts

Recommendations


“Provides strong, consistent and clear advice with a calm and thorough approach.”

Chambers & Partners 2018

“He is very approachable, very easy to deal with and a very straightforward barrister”

Chambers & Partners 2018

“Very clever, thoughtful, precise and unfailingly good humoured – in Court he is awesome”

Legal 500, 2018

“A calm, measured approach, he strikes a good balance between the details and big picture”

Legal 500, 2018

“A superb advocate”

Legal 500, 2018


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