Marion Smith KC

Marion also acts as an adjudicator, including under private finance initiatives (PFIs) and public private partnerships (PPPs).

• Adjudicator in four linked adjudications relating to the costs of 24-hour waking watch patrols.
• Adjudicator (TechBar) in a dispute between a further education college and its provider of project management services in relation to a substantial urban development project.
• Adjudicator in a dispute between a NHS trust and project co/service provider in relation to a claim for service fees.
• Appointed to provide an expert determination in relation to warranty claims under a share purchase agreement.

Marion is an IMI qualified mediator, and a member of  the Singapore International Mediation Centre’s Mediator Panel. She is regularly appointed as a mediator across a broad industry spectrum. She specialises in mediating construction disputes including multi-party disputes.

• Mediator, fire protection and building safety claim.
• Mediator, professional negligence action outside E&W arising out of a development project.
• Mediator, TCC multi-party action arising out of the design and construction of a residential development.
• Co-mediator, (SIMC appointed), in dispute relating to cross-border construction project
• Mediator, TCC multi-party action arising out of the design and construction of educational facilities.
• Mediator, Chancery action, disputed entitlement to employment bonus.
• Mediator, in relation to a disputed final account
• Mediator in dispute relating to funding arrangements for installations in the energy sector

Marion has extensive experience advising businesses from SMEs to large multi-nationals as well as public sector clients on a range of commercial contracts, including supply contracts for goods and services, joint ventures, collaboration and partnership agreements and agency and distribution agreements. She gives clear, pragmatic and commercially-focused advice on the interpretation, enforcement and termination of these commercial arrangements, whether in a bespoke or industry standard form.

Cases of Note

• Lead counsel, advising in relation to the termination of a distribution agreement in the healthcare sector.
• Lead counsel, advising in relation to demands under an on-demand bond in connection with an energy from waste (EfW) development.
• Lead counsel, advising in relation to the release of cash collateral held by the provider of a performance guarantee bond.
• Lead counsel, advising in relation to the validity of assignments and the non-fulfilment of conditions precedent in international financing agreements.
• Lead counsel, advising in relation to insurance claims arising out of the failure of a major package travel provider.
• Lead counsel, advising in a dispute relating to the design and manufacture of clothing and fashion accessories to an online retailer.
• Advising a charity in a claim against a UK bank in relation to the provision of banking services.
• Advising on the enforceability of standard term contracts relating to the provision of smart metering equipment to electricity and gas providers.

Marion has over 20 years’ experience as counsel representing and advising in relation to a broad range of energy, infrastructure and construction matters in TCC proceedings and international arbitration. She has extensive experience in domestic and international standard form contracts, including  FIDIC, JCT and NEC. She  is recommended in the leading directories for construction. She is a contributor to Wilmot-Smith and Darling on Construction Contract (1st – 4th Edition OUP), Foskett on Compromise (10th Edition Sweet & Maxwell), Dovar & Sawtell (1st Edition Sweet & Maxwell) and GAR Guide to Construction Arbitration (5th Edition).

Marion’s construction practice includes:

• Adjudication, mediation, expert determination and arbitration
• Cladding and other building safety defects
• Construction professionals’ liability
• Construction, engineering and infrastructure disputes
• Defects, Delay and disruption

Cases of Note

• Lead counsel in a five-week TCC trial arising out a EfW project in the UK.
• Lead counsel, acting for scaffolding contractor enforcing an adjudicator’s decision in a case which turned on the interpretation of the conclusive evidence clause in the JCT Design & Build contract, instructed by Ward Hadaway: Battersea Power Project Phase 2 Development Company Ltd v. QFS Scaffolding Ltd [2024] EWHC 591 (TCC).
• Lead counsel in an ICC arbitration relating to a design and build contract for a bridge and related roads in Southern Africa
• Lead counsel, acting for an employer in a multi-million–pound delay dispute in adjudication arising from a construction project on an inner-city brownfield site involving contamination and piling issues.
• Lead counsel, advising three councils in a dispute relating to an EfW project and deductions for facilities management services.
• Lead counsel, advising in relation to claims for an extension of time and the prevention principle in the context of a warehouse development.
• Lead counsel, representing the main contractor in an adjudication relating to the supply of logistics handling equipment with issues relating to jurisdiction and the implication of the scheme’s payment mechanism provisions.
• Lead counsel, representing the specialist sub-contractor in an adjudication relating to a large and complex commercial façade project with issues of delay, extensions of time and liquidated damages.
• Lead counsel, advising a public sector client in an adjudication relating to the effect of Covid-19 on compensation events under its contract for highways maintenance.
• Lead counsel, representing a rail infrastructure provider in TCC proceedings relating to machinery and plant hire.
• Lead counsel, advising the provider of student accommodation on its entitlement to EOT and the application of the de minimis principle.

Marion has acted as counsel and as arbitrator in disputes arising from the construction of oil and gas infrastructure projects around the world. She has specific expertise in relation to EfW projects in the UK and has extensive experience in the interpretation and application of engineering, procurement and construction (EPC) contracts and  FIDIC and IChemE contracts.

Marion’s energy and natural resources practice includes:

• Biomass and energy from waste
• Electricity; Nuclear; Renewables
• Water

Cases of Note

• Lead counsel, acting for a state enterprise in a complex technical UNCITRAL arbitration relating to the decommissioning of nuclear facilities in Europe.
• Lead counsel, advising a local authority in relation to indexation provisions in a long-term contract for the supply of waste services.
• Lead counsel, in interrelated adjudication and TCC proceedings relating to claims for variations arising out of an EPC contract for the design and construction of an EfW plant in the UK.
• Lead counsel, advising in relation to extensions of time for epidemic, force majeure, severe weather and change in legislation and liquidated damages arising out of the design and construction of an EfW facility in the UK.
• Lead counsel, advising a local authority in relation to the delayed completion of its EfW plant being provided under a public finance initiative in the UK
• Lead counsel, advising on the termination of an EPC contract for a liquified petroleum gas (LPG)-fuelled power plant in Africa for delay and defects and claims under related financing arrangements.
• Lead counsel, advising joint venture parties in a dispute related to delay and disruption in the performance of an EPC contract for a residual waste treatment facility.
• Lead counsel, advising in relation to disputes arising out of the design and build of the civil, structural and architectural works for a waste-to-energy (W2E) plant
• Lead counsel, advising in relation to statutory adjudication and related claims before a dispute board arising out of the design and construction of a coal fired power plant in Malaysia.

Marion is often appointed as counsel in relation to private finance initiatives (PFI) and public private partnerships (PPP) disputes.

Marion advises on operational, strategic and tactical issues, taking PFI/PPP disputes through all types of formal dispute resolution processes. She has over 20 years of experience across multiple sectors: education, energy, health, road maintenance, social housing, street lighting and waste. This substantial experience means she is well placed to address the legal issues involved in these disputes in the financial and political context in which they arise.

She is also appointed as an adjudicator on PFI/PPP disputes.

Cases of Note

• Lead counsel, advising three councils in a dispute relating to an EfW project and deductions for facilities management services.
• Lead counsel, advising an NHS trust in respect of defects in the fire compartmentation in its PFI hospital and facilities management issues.
• Lead counsel, advising a local authority in relation to the impact of Covid-19 on its road maintenance programme and services.
• Lead counsel, advising an NHS trust in relation to the provision of building, maintenance and engineering services and service variations.
• Lead counsel, advising a local authority in relation to a waste contract procurement project in a dispute involving design, installation and termination issues.
• Lead counsel, advising a government on the construction and operation of military facilities in a dispute involving the reduction of services and termination.
• Lead counsel, advising an NHS trust in relation to a benchmarking exercise connected with facilities management and the provision of the helpdesk.
• Adjudicator in a dispute between a further education college and its provider of project management services in relation to fees for a substantial urban development project.
• Adjudicator in a dispute between NHS trust and project co/service provider in relation to the adjustment of service fees.

Marion’s professional negligence practice encompasses both construction and non-construction professionals. She is often instructed in difficult and high-value cases involving solicitors, architects, engineers, project managers and environmental consultants. She is a contributor on professional negligence issues to Net Zero and Nature Positive, (1st Edition LPP).

Cases of Note

• Lead counsel, representing a local authority in a TCC action against the design and build contractor and architect in relation to cladding issues in residential tower blocks in London.
• Lead counsel, in connected TCC proceedings, representing the architect defendant in claims relating to the design of the cladding for residential accommodation in the UK.
• Lead counsel, representing the main contractor in an ICC arbitration on a design and build project relating to a desalination plant in the MENA region.
• Lead Counsel, representing the project manager in a multi-party TCC action arising out of the development of a mixed-use retail and residential project instructed by DAC Beachcroft LLP: Standard Life Assurance Limited v. Gleeds (UK) [2022] EWHC 1310.
• Lead counsel, representing the Employer in a delay and variations claim relating to a Liquid Petroleum Gas mooring facility in an LCIA-DIFC arbitration.
• Lead counsel, representing multiple claimants in the Business and Property Court proceedings against solicitors and various corporate vehicles and directors for professional negligence arising out of an advance purchase gold investment scheme.
• Advising homeowners in a claim against its solicitors in relation to the conduct of construction litigation claims against various construction consultants.