The paper provides an overview of the TCC’s summary procedure for enforcing unpaid adjudication awards and analyses one approach to challenging such awards which has been employed by non-paying parties: use of a Part 8 claim, to seek the court’s final determination of a self-contained legal issue which arose in the adjudication.
The paper suggests a scenario – you act for a contractor who has not been paid for his work. You read the contract and find no contractual entitlement. What should you do? The author’s suggestion is that you should run through a checklist of possible extra-contractual routes to recovery: misrepresentation, implied terms and damages for breach of contract, prevention/time at large, estoppel, impossibility, and penalty and relief from forfeiture.
This paper identifies some key issues from 2023 construction cases, in particular in relation to limitation. In URS Corporation v BDW Trading Ltd, the Court of Appeal looked at when a cause of action accrues, grappling with Pirelli v Oscar Faber, and the question of whether a developer can be owed a duty under section 1 of the Defective Premises Act 1972.
The paper describes a striking difference between the common law and the civil law, which is the existence in French civil law of the right of the contractor to make claims against a state entity on grounds that have no counterpart in the common law. This will apply in the case of contracts with state entities, regardless of whether or not it is provided for in the contract.
This paper assesses the Hudson formula, a formula created over 50 years ago that provides a means of calculating a contractor’s lost contribution to head-office overheads and profit as a result of delays to completion of a construction project.
The paper looks at the issue of whether a penal liquidated damages clause can operate as a cap on general damages. It summarises the law on penalties and examines two recent TCC cases: Eco World, in which O’Farrell J stated obiter that a penal liquidated damages clause would cap a claim for general damages, and Buckingham, in which Mr Nissen KC stated obiter that general damages would be uncapped.
John Tackaberry KC
March 2023
A paper based on a presentation to the Society of Construction Law on 5th April 2022 at the Memorial Talk for John Sims and Ray Turner, founding members of the Society.
Rowan Planterose
March 2023
A paper based on a presentation to the Society of Construction Law on 5th April 2022 at the Memorial Talk for John Sims and Ray Turner, founding members of the Society, and updated following the Law Commission’s Review.
