Interview: Lindy Patterson, construction lawyer

WHEN someone is at the very top of their profession, and they have been there for some time, it is natural to assume a carefully constructed plan got them there.

Not so with Lindy Patterson. She is widely acknowledged as one of the UK’s leading construction lawyers and, although Scotland-based, often plies her trade in London – but her choice of sector was not the result of deep thought.

“I got into construction by complete chance,” says Patterson, a partner with Dundas & Wilson. “I realised during my training that I really loved litigation; conveyancing and executry work wasn’t for me. I did my general litigation training and gradually moved into the civil side then, three years qualified, I went into commercial litigation. I got involved in things like building contract disputes, which I found stimulating and challenging.”

Patterson trained at Burness. She has now been a construction lawyer, for (whisper it) more than 20 years, and the world changed a great deal as she moved from Bird Semple to Macroberts, and then D&W.

So what attracted her to construction law, an overwhelmingly male sector when she moved into it? Isn’t it still seen as, well, boring? “It’s much broader than people think; there are so many things it consumes. It’s all about contract, which I love, and the analysis of very complex contracts. A contract is a contract, whether you are building a motorway or a power station.

“In addition to that, you have the technical and engineering aspects which you have to get to grips with when you are arguing a client’s case. I have spent many an evening before a hearing with a client’s technical experts understanding the obscurest and most complex technical issues.”

Patterson has an unusual CV for a partner in private practice; she became a solicitor advocate in 1992 and a QC in 2010. Why? “I wanted to be involved in advocacy but remain within private practice, so when solicitor advocates came in, I was one of the first. It is an important part of the service I can offer to clients.”

Patterson has been involved in projects involving iconic Scottish landmarks – including the extension of Murrayfield stadium, work on both the Forth road and rail bridges, and the Skye Bridge.

“I have also been on lots of landfill sites with JCBs,” she laughs.

Construction law is very much the same north and south of the Border, so it is no surprise Patterson operates across the UK. Clients, she says, expect you to be able to deal with and advise on their problems in the same way they themselves operate – not by where they are physically located but by where the business is, and their businesses are seldom divided by the line between Scotland and England.

“This has been particularly important with the Scottish construction market shrinking,” she says. “Fewer jobs mean fewer problems to deal with, although I see this changing once we start emerging from recession.”

Then the knock-on effect of undercutting, she believes, will be felt in disputes, with contractors at that point being confident enough about the future to pursue claims to recover their costs on building projects.

Patterson says operating in a wider market has many advantages: “You can see legal trends elsewhere, for example, in court and arbitration procedures – how they are dealing with claims. These are often trends which can be used and adapted in Scotland as well.

“For example, in renewables and energy projects generally the influence of international contractors and their ways of doing things are already being felt. They have brought different approaches to the contracts and different types of contract.”

She says that seeing opportunities in emerging trends and developments in the law is key to being successful as a lawyer in the current climate. This approach has led her to operate as third-party decision maker in a number of disputes.

One of these has taken her to northern Europe three times a year for the last five years as chairman of a three-person dispute board; the other two members are engineers.

“This is a common method of avoiding and, if necessary, quickly resolving disputes in major international construction jobs, and in fact has been adopted in Scotland for the new Forth crossing,” she explains.

“The true sign of the success of this form of dispute avoidance was in the speech the contractor gave at the last meeting when the board were thanked for helping them ‘to keep their heads’ and guide them through an extremely fraught contract.”

Last month, Patterson spoke to an international audience in Brussels about her experiences on this project – on a “no names” basis, as it is all highly confidential – to extol the benefits of having three individuals who know what is happening on a job from start to finish, and also know the personalities.

She has also been appointed as the only UK-based lawyer on the Scottish Arbitration Centre’s committee for appointing arbitrators in Scotland since the introduction of the Arbitration Act. The other lawyers on the committee are based in New York, Hong Kong, Paris and Stockholm.

Patterson is a great believer in plurality of dispute resolution methods – several of which are utilised in construction disputes: “The key is finding a means which can as readily avoid disputes, as well as resolving them speedily should they arise.” She lists adjudication, dispute boards and mediation as some examples of these alternative forms of dispute resolution.

Having that adaptability and openness to embrace new opportunities appears to have served Patterson well. “You have to be able to think like, and think with, your clients in a strategic manner, while making sure they fully understand where the law can and will take them.”

Strategic thinking must have been the order of the day the year she qualified. Her contemporaries at the University of Edinburgh include Kenny MacAskill, now Cabinet Secretary for Justice; Robert Carr, chairman of Anderson Strathern; Magnus Swanson, until last year chief executive of Maclay, Murray and Spens; Supreme Court judge Lord Doherty; former rail regulator Tom Winsor; and John Sturrock, Scotland’s leading mediator.

Patterson looks back nostalgically to her time at university but acknowledges the skills students now learn are much wider than simply understanding the law. Patterson contributes to a practical course in construction law at her alma mater – the first of its type as this specialism, she says, was until recently learned in the office, not taught.

Asked if she would encourage young people now to enter the law, she pauses: “It’s a great qualification as it gives you a grounding in the analysis of issues as well as problem-solving skills.

“My only hesitation is that we are in a shrinking legal market and are, like many, likely to look back on this period as a bit of a watershed.

“However, there continue to be great opportunities for those in the profession with drive and initiative, who are able to spot how the market is changing and adapt to meet this. And Scots law is a great qualification that stands you in good stead far beyond Scotland.”