Liquidated damages clauses are commonly used in construction contracts to provide the employer with a ready-made remedy for delay. These provisions allow the employer to claim or deduct a specified sum of money without having to prove its actual loss in a claim for damages. In two recent cases , the English courts have considered the important issues in relation to the enforceability and availability of liquidated damages.
Background The decision follows an earlier trial of a preliminary issue in January 2016, which established that the defendant architect (Mrs Lejonvarn) owed a tortious duty of care to her friends (the Burgesses), notwithstanding the fact that there was no contract and Mrs Lejonvarn was not paid for her services. That decision was subsequently upheld […]
“We are all trying to hack out a pathway through a dense thicket of amended legislation, burgeoning case law and ever-changing standard form contracts.” Sir Rupert Jackson, S&T (UK) Ltd v Grove Developments Ltd  EWCA Civ 2448 In a highly anticipated and significant judgment, the Court of Appeal has upheld the decision of Coulson […]
For over a century, it has been well settled in English law that a company has its own legal personality entirely separate from that of its shareholders and directors who are, by virtue of the “corporate veil”, protected from being personally liable for the company’s debts and other obligations. Attempts to look behind the corporate […]
In commercial disputes, it is not unusual for the claimant’s losses to be caused (or contributed to) by a number of different parties. For instance, the claimant may have elected to pursue the party with the deepest pockets, or the loss may have been caused by one of the defendant’s subcontractors. In such circumstances, the […]
A recent case has clarified when a party may be able to raise a substantive defence to adjudication enforcement. The courts have long made it clear that they will enforce adjudicators’ decisions save in the most exceptional circumstances. In the context of enforcement proceedings, the courts are not concerned with whether the adjudicator got the […]
Background Most construction and engineering disputes are settled by negotiation and without the need for formal dispute proceedings. Where disputes cannot be resolved in this way, a claimant will usually have the option of pursuing its entitlements through statutory or contractual adjudication. In some cases, however, litigation or arbitration will be necessary. Before commencing court […]
Many disputes that arise from construction projects are solved in adjudication – but mediation is an option that should not be overlooked. It is almost inevitable that disputes of some kind will arise during the course of a construction project. These disputes can usually be resolved without the need for formal dispute resolution proceedings. However, […]
Disputes and differences arise in connection with most construction projects, large or small. In our experience, a majority are resolved by the parties without recourse to formal dispute resolution, particularly while projects remain ongoing. Moreover, even the minority which become subject to dispute resolution proceedings appear to us to be settled before determination. In essence, […]
Within the construction industry there appears to be uncertainty as to the circumstances in which a party can terminate a contract and the consequences of a wrongful termination. There would also seem to be a general lack of understanding of the concept of a “repudiatory breach” of contract, and how this is relevant to termination. […]
Fladgate LLP is delighted to announce the promotion of commercial property specialist Gavin Whitney to its partnership in the latest round of internal promotions, effective 1 April 2016. As part of the firm’s Route to Partnership policy, Fladgate has made a number of additional promotions within its partnership structure as well as promoting Tom Bolam […]
It is not uncommon for professional consultants such as architects, engineers, project managers (and even lawyers) to provide services for friends, contacts and clients free of charge. We do this for a number of reasons, often with a view to securing profitable, fee earning work in the future. However, a recent decision of the Technology […]
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