Ben Patten QC

Recognised as a Leading Construction Silk by both the Legal 500 and Chambers & Partners. Ben has very considerable experience in construction and engineering disputes. He has appeared in a wide range of cases in the TCC, Arbitrations, Adjudications and the Court of Appeal. He has been described in Chambers and Partners as being greatly respected by clients for being ‘”very easy to engage with and always provides sound commercial advice,” “he is amazingly calm under pressure, which gives the entire team confidence,”  and for having a“way of presenting an argument which appeals to judges hugely,” and “incredibly calm,” “persuasive” approach; “a top performer who has a very concise and effective drafting, advisory and advocacy style“; “technically he’s one of the best around. He is also highly responsive”, “he is efficient, very clever and knows his stuff.” “He has the trust of judges: he never makes a bad point or overblows a submission.”

Recent and current cases include:

• Acting for certificating architects in a claim brought by a number of purchasers.
• Acting for the employers of an auction mart in a dispute with the developer.
• Acting for architects and project managers in relation to a claim in respect of the renovation and development of civic premises.
• Acting for the Claimant in the groundbreaking vicarious liability case of Biffa Waste Services Ltd. v Maschinenfabrik Ernst Hese Gmbh, both at first instance in front of Mr Justice Ramsey and in the Court of Appeal (late 2008). The case is now the leading authority on the application of the control test for borrowed employees and of the extent of the application of the “extra hazardous acts” rule in Honeywill v Stein & Larkin.
• Acting for the defendant architects in the appeal to the Court of Appeal in Hunt v Optima, an appeal from Mr Justice Akenhead, which is the leading authority on duties arising from professional consultants’ certificates.
• Acting for specialist contractors against whom a substantial claim was made arising out of a fire on the Isle of Wight.
• Acting for employers in respect of a biogas installation in a claim against the contractor.
• Acting for a firm of contractors in a multi-party dispute concerning piling and ground improvement works for a superstore in Kent.
• Acting for consultants in respect of a claim concerning stone cladding to a building in the City of London.
• Acting for a firm of contractors on a dispute concerning variations, extensions of time and loss and expense claims in relation to a residential development in Kensington.
• Acting for a firm of contractors in relation to a dispute over delays to a large development at Southbank London arising from a diesel spillage.
• Acting for a demolition contractor in relation to an inter-related series of adjudications and part 8 disputes concerning contractual interpretation.
• Acting for PI insurers of engineers on a large construction project in Ireland (essentially construction of bridges).
• Acting for UK design and build contractors in adjudication proceedings concerned with plant producing car parts (the issues are engineering).

Recent and current international cases include

• Acting for US contractors in a dispute concerning the construction of a gas pipeline in Nigeria.
• Acting for a Qatari developer in a dispute concerning a mixed use development in Doha.
• Acting for an international construction consultancy group in a dispute over project monitoring in the Caucuses.
• Acting for a Dubai based contractor in a dispute in the Dubai World Tribunal.
• Acting for US engineers in an arbitration concerned with a production plant in Germany where the critical issues concern tooling and engineering.

Ben has substantial experience of commercial litigation in the Commercial Court, the Mercantile Courts and in arbitrations. He has being involved in a number of share sale warranty disputes, sale of goods disputes, disputes concerning licensing agreements and disputes concerning employment and restraint of trade.

Recent and current cases include:

• Acting for a printing concern in seeking injunctive relief against ex employees seeking to contact former clients whilst working with a competitor.
• Acting for a group of aviation companies facing debt claims arising out of service agreements and pension scheme arrangements pre-dating a share sale agreement.
• Acting for one of the joint venture partners in property joint venture in a dispute concerning the allocation of certain profits and losses.
• Acting for an engineering concern in relation to a dispute as to the meaning and effects of contracts between itself and a Swiss and a French concern in relation to the carrying out of certain works at a power station in the UK.
• Acting for the purchaser of a heating and electricity generating system in a dispute with the vendors of the system.
• Acting for solicitors in contribution proceedings against a bank in relation to losses sustained by their mutual clients.
• Acting for the leaseholder of a substantial office block in central London in respect of a delapidations claim.
• Acting for the contractor on a n expert determination in relation to a large government contract for services.
• Acting for the vendors of a construction business in relation to a share sale warranty claim.

Ben is frequently involved in insurance disputes, both in the Commercial and Mercantile Courts and in arbitrations. Many of these disputes arise out of other areas of his practice and in particular he is experienced in disputes concerning Contractors All Risks policies and Professional Indemnity policies.

Recent and current cases include:

• A claim by an employer contemplating proceedings under the Third Party (Rights Against Insurers) Act, for information concerning the contents and claims record of a contractor’s policy of insurance.
• An action by insurers against former assureds seeking declarations that the policy was avoided on grounds of fraud.
• A dispute between insurers as to which policy responded to a loss where the assured had claimed against both.
• A dispute between the designer of specialist TV and Film set staging and its public liability insurer on liability for claims by third parties arising out of the collapse of one of its structures.
• A dispute between a construction contractor and its CAR insurer concerning whether losses arising from claims made by the employees of a sub-contractor were covered by the policy.
• Acting for the insurer of a financial services provider in respect of a policy dispute.
• Acting for the insurer of engineers under a professional indemnity policy concerning coverage issues.
• Acting for consulting engineers on policy issues arising out of allegedly defective design in respect of two water treatment plants.
• Acting for professional indemnity insurers in respect of coverage disputes concerning allegedly fraudulent solicitors.
• Acting for CAR insurers in relation to coverage issues arising out of notification and “one claim” disputes.

Ben has extensive experience in property damage cases

• Acting for the claimant in Biffa Waste Services Ltd and Anor v Maschinenfabrik Ernst Hese GmbH both at first instance in front of Mr Justice Ramsey and in the Court of Appeal (late 2008). The case is now the leading authority on the application of the control test for borrowed employees and of the extent of the application of the “extra hazardous acts” rule in Honeywill v Stein & Larkin
• Acting for specialist contractors against whom a substantial claim was made arising out of a fire on the Isle of Wight.

• Acting for an electrical sub-contractor in a very substantial multi-party case involving a fire at a retail park in Warrington
• Acting for a contractor in relation to asbestos contamination in industrial premises in Kent
• Acting for the CAR insurers of a major contractor in relation to flood damage at a hotel in Mayfair
• Acting for brokers in relation to a dispute over PL coverage in relation to damage to specialist pipework in an intensive care unit in Belfast

Ben’s main expertise lies in construction law and in particular in large construction projects with spin off financial claims. These include: gas pipelines; airport terminal buildings; office developments; airport runways; roads and bridges. He has experience in many different forms of construction contract and most commonly encountered construction issues, including: delay and disruption; variations; defects; certification and partnering. He is also experienced in issues concerning funding arrangements, guarantees and bonds.

Current and recent cases

National Infrastructure Development Co v BNP Paribas

In this case, which is one of a number actions taken by NIDCO to enforce standby letters of credit, Ben acted for the corporate construction arm of Trinidad and Tobago to enforce on-demand bonds to the value of nearly US$59 million. The defendant bank claimed (unsuccessfully) that it was not require to pay by reason of a Brazilian injunction. The case citation is [2016] EWHC 2508 (Comm).

S v H

This is a dispute between a US based turnkey manufacturer of specialist plant and a Swiss company concerning the design, installation and construction of a manufacturing plant in Germany. The legal issues concern contractual obligations, including responsibility for regulatory delays. The value of the claim is still being ascertained but the contract value is in excess of US$60m. The arbitration is conducted under ICC auspices (the law of the Contract is Swiss law). Ben acts for the US concern.

N v F

This was a very substantial dispute concerning a development project in Moscow. Ben acted as one of two leading counsel for one of the parties. The issues concern fraud, breach of fiduciary duty, contractual interpretation, causation and valuation. The claim was put at more than US$500m.

U v A

A series of disputes (some of which were referred to the LCIA) concerning a series of projects and related financial arrangements concerning the development of 8 tower blocks and a separate residential project in Doha, Qatar. The total quantum of the claims exceeded US$100m. Ben acted for the Qatari developer. There were three sets of related proceedings taking place in London and Doha. The Qatari and LCIA proceedings raised issues of contractual construction, bilateral obligations and commercial fraud. Proceedings before the Commercial Court concerned funding arrangements and claims by lenders against the developer. The issues in that claim concerned (1) forum; (2) proper law; (3) issues of agency and authority under Qatari law (4) compromise and ratification and (5) frustration/impossibility. The claim was for repayment of debt obligations in excess of $US35m.

T v N

Ben was engaged in a series of disputes (one of which has been litigated in the Dubai World Tribunal at the DIFC) between a Cypriot contractor and the developer of the Palm in Dubai. The issues concerned extension of time and claims for loss and expense. The value of the claims was very substantial.

E v A

Ben acted for an international construction consultancy concerning loans made to the developer of a mixed use development in Armenia. The allegations concerned project management and monitoring (in particular, alleged failure to detect mismanagement on the part of the developer and to identify likely cost overrun). The value of this LCIA claim was alleged to be in the region of US $25m. In addition to technical issues relating to the project, the issues of law concern the proper extent of a monitoring consultant’s duties and the role of contributory fault by the lender.

W v W

This was a dispute concerning the construction of a gas pipeline through Nigeria and other West African states. The contractor’s contract was terminated for alleged non-performance, although the contractor contended that the employer had failed to pay its contractual entitlements. The legal issues concerned the true construction of termination clauses, limitation on liability clauses and liquidated and ascertained damages clauses. More general issues concerned delays, extensions of time and defects. There were substantial practical issues concerning discovery from the parties’ different manifestations in a number of different jurisdictions. Approximate claim value $120m. Ben acted for the contractor.

SG v KT

This was a dispute brought by a UK dependency against a firm of architects over the design, project management and contract administration of a project to construct a new airport terminal building. Legal issues concerned conflicts of law and jurisdiction between the law of the dependency and the law of the reference and issues over enforcement of interim awards. The more general issue in the case concerned alleged design defects, design coordination between different members of the design team, inspection of contractors’ works, delay and reporting of cost overruns. Approximate claim value £15m. Ben acted for the architect.

C v P

This was a dispute concerning the adequacy of the design and construction of the concrete framework for a combined office and residential development in Dublin, Republic of Ireland. The legal issues concerned the proper interpretation of the contract as to the priority of contract documents and the meaning of the variations clauses. General issues concerned design responsibility, defects, extensions of time and loss and expense payments. Approximate claim value €6m. Ben acted for the contractor.

I v C

This is a dispute between an African construction company and a US based design and build contractor concerning the construction of two power generating plants in Liberia. The legal issues concerned alleged misrepresentation, the true meaning of the contract, causes of delay and entitlement to repudiate. The value of the claim was said to be just under US$10m. The arbitration is conducted under ICC auspices. Ben acts for the design and build contractor.

Ben acts as an arbitrator and mediator in construction disputes. He recently acted in a mediation between four parties in relation to a construction project in Northern Ireland.

Ben is an accredited mediator and has mediated a range of disputes including:

• a dispute between a design and build contractor and its project architect;
• a dispute between a company and its former solicitors;
• a dispute between a contractor, its sub-contractors and its CAR insurers;
• a dispute between an employer and a design and build contractor;
• a dispute between two religious groups over the property of an unincorporated association.

In addition to mediation, Ben has acted as a conciliator under forms of contract made in the Republic of Ireland and Northern Ireland. He has a very “hands on” approach to mediation and likes to engage with the parties both before and (if appropriate) after the day of the mediation so as to ensure that the parties have the maximum prospect of achieving benefit out of the mediation.