The industry has coped extraordinarily well with the COVID-19 crisis

‘I think that there will be a significant impact played by the types of project that are being built’ says Niav O‘Higgins, Partner in Arthur Cox.

28th September, 2020
The industry has coped extraordinarily well with the COVID-19 crisis

What's your name and what position do you hold?

My name is Niav O’Higgins and I am a Partner in Arthur Cox and head up the Construction and Engineering team, leading a team of 14 lawyers, alongside my partner, Karen Killoran.

What are your day to day responsibilities?

As a partner in Arthur Cox, the day to day responsibilities can vary hugely. In addition to providing legal advice to clients, a typical day will usually include some ‘management’ tasks, such as ensuring work is appropriately allocated between associates in the team, and that we are on track to meet any deadlines, or contributing to firm wide initiatives, such as our mentoring programme, or indeed participating in webinars or writing articles. In the current environment, we speak with the team every day and have weekly zoom meeting where we discuss in more detail the work that everyone one is doing in the team. We also have weekly zoom drop-ins at which we can discuss the types of issues that we are seeing and tease out how we are dealing with more challenging issues that we are now having to draft for.

We are one of the leading construction practices in Ireland and are involved in some of the most exciting and innovative projects in Ireland. This has included the Facebook datacentre development in Meath, which has led to us being instructed as their lead construction advisors for the role out of their EMEA data centre programme, Intel’s €8bn expansion project, the new north runway at Dublin Airport, the National Broadband roll out, as well as a significant portfolio of renewable energy projects. The construction team in Arthur Cox advise our clients through all stages of a construction project, for example, advising on optimal contracting strategies taking account of particular risks or imperatives arising on the particular project, and drafting contracts which meet those objectives, as well as providing advice on issues that can arise during the course of a project and where necessary, assisting with dispute resolution. We have been amazed by the level of activity that has continued in the sector, notwithstanding COVID-19, and while we have provided a lot of advice on managing the impact of COVID-19 on existing and new contracts, and have definitely seen an increase in disputes, there have also been a significant number of projects that have continued and also new ones that have commenced, which demonstrates real confidence in Ireland and in the sector.

What is your professional background?

I have over 25 years’ experience in construction and engineering law. I initially trained as a lawyer in London, specialising in construction and engineering, where I worked principally with contractors across a range of sectors. I moved to Ireland in 1997 and joined Arthur Cox as a partner in 2004, over 16 years ago. I have headed up the team since 2007 and have been delighted to see the team flourish and grow into the leading practice we have now. I am passionate about this sector and this area of law, and am proud to now have an equally enthusiastic team around me!

Through working in this sector, I quickly developed an interest in health and safety, and in 2003, I undertook an MA in Environmental and Health and Safety Law. As well as leading the construction and engineering team in Arthur Cox, I am also a part of the Health and Safety Group in Arthur Cox, which is made up of solicitors with diverse skill sets working in construction, environmental law, litigation and employment. I advise on matters of health and safety, particularly as it affects those working in construction and have acted successfully on several prosecutions brought by the Health and Safety Authority. I am also a lecturer in Trinity on their post graduate diploma in Health and Safety in Construction.

We also work a great deal in dispute resolution and I am an accredited CEDR Mediator as well as having completed the RICS diploma in adjudication. Our focus is always on dispute resolution but we regularly advise clients in conciliations and mediations and more recently, statutory adjudications under the Construction Contracts Act 2013. We also have extensive experience of litigation and arbitration (domestic and international), although thankfully, most disputes are resolved long before it gets to this point.

How do you think the industry is coping with the Covid-19 crisis? What lasting impact do you see on the sector?

I think the industry has coped extraordinarily well with the COVID-19 crisis. From the get go, I was so impressed by the response from the industry and from the CIF in terms of preparing the Standard Operating procedures which really led the way in terms of enabling the sector to get back to work safely. Those working in construction are incredibly resilient and are used to managing different circumstances and risks that can impact how works are undertaken and I think the response to COVID-19 is a shining example of this.

One change that we have seen which hopefully will have longer lasting impacts, is the level of collaboration and co-operation between the contacting parties in the face of dealing with the very real challenges that COVID-19 has presented. I would hope that this would lead to a greater understanding on both sides of the contract, so to speak, of the challenges faced by the counter-party. What has come out of this is a better appreciation of the fact that both sides are committed to ensuring the successful delivery of a project and can actually achieve a lot more if they can find ways of working together in a fair and reasonable manner to achieve that end.

In terms of the longer term impact that COVID-19 will have, I think that in line with what we are seeing across the spectrum of economic sectors, the introduction of technological solutions will be fast forwarded in construction. Restrictions on the numbers of workers that can congregate on sites is necessarily leading to people thinking about how projects might be constructed differently, with greater use of off-site and modular construction.

How do you see tech innovation transforming this industry? What do you think will be the major breakthroughs over the next 5–10 years?

I think the acceleration of technological innovation in the industry will have a huge impact on how construction works are undertaken. This should lead to a reduction in the very labour-intensive activities on site (although I do not think this kind of work can be entirely avoided). This in turn will, hopefully, reduce the number of hazards involved in construction work and make this a safer sector to work in. The greater use of technology will also create new roles for people to be involved in construction and I think the combination of these changes will open up new opportunities for people coming into the industry, both on and off site. There has been a real push over the last few years to create more opportunities for women in the industry, to make role models more visible, and to actively promote more diversity. The changes which will come in in terms of how construction is undertaken could also be very positive on this front, and facilitate the involvement of a more diverse workforce - the changing nature of the ‘professions’ involved in construction and the use of more automated methodologies will certainly make construction much more accessible.

In addition, the more widespread use of software and modelling, such as BIM, to support design and design co-ordination should reduce the number of clashes on site and changes to design, which combined with more modular construction techniques, will hopefully lead to greater certainty around programme and overall costs. I think it also represents an opportunity to build on the more collaborative atmosphere that has prevailed over the last number of months, and hopefully will encourage greater focus on “working together”.

What will be the leading trends in the construction industry in coming years and how will businesses need to adapt?

This is a really difficult question to answer. As I have said, one would hope that there will be much more collaboration between parties involved in construction and certainly the use of greater technology will require greater planning and design much earlier on in the process, with input from everyone. Those working in construction have a key role to play in identifying how things might be done differently and better on site as they have the real insight into how construction processes work and how what is on the page is realised in concrete and steel, so to speak. The use of modular construction and other technology in easing the processes on site will be a key area.

I think that there will also be a significant impact played by the types of project that are being built. Data centres are a huge growth area at the moment, and Ireland has long been a hot spot for pharmaceutical companies, both of which require very high tech installations and finishes. A further area where we see a lot of growth which will add to his evolution is high-tech logistics, with increasing need for efficient and mechanised warehousing facilities, operated through software, to meet the demand for a growing online retail sector.

And for businesses working in construction, this will mean that contractors and professionals will need to embrace and harness the potential that greater technological solutions can offer. BIM, for example, has been something of a slow burner and is certainly not universally adopted on projects. This will have to change, and be expanded to keep up with the acceleration of technology.

Niav will be speaking at the 2020 CIF Annual Conference on October 1st, Online.

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