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SOME CLARITY ON LIQUIDATED DAMAGES FOR CONSTRUCTION INDUSTRY Recently the Court decided two key cases concerning liquidated damages, one regarding liquidated damages where a contract has been terminated prior to the works being completed, and the other regarding liquidated damages where the employer has taken partial possession. These cases provide timely clarity to the construction industry at a time when increased delays and contract terminations are being seen following the impact of Covid-19. Triple Point Technology Inc v PTT Public Company Ltd [2021] UKSC 29 The Supreme Court decision in Triple Point Technology Inc v PTT Public Company Ltd (Triple Point v PTT), finally decided the manner in which liquidated damages (LD) can be applied when a contract is terminated. The judgment affirms that if a contract is terminated before practical completion, the contractual claim for LDs is not lost. The termination date becomes the end date for which LDs can be claimed up to and following the date of termination the employer can instead bring a claim for general damages.
The Supreme Court Decision
Whilst the case revolves around a bespoke contract in the IT sector, the legal principles transfer to the use of LD clauses in construction contracts and the case is one of the most significant cases for the construction industry in recent years.
At the date of termination, the contractual completion date had already passed, and Triple Point had accrued liability for LDs pre-termination. The Supreme Court held that Triple Point was liable to pay LDs for the period of delay up to termination with accrued rights to LDs surviving termination. Triple Point’s liability to pay LDs then ceases from the date of the termination, as Triple Point’s obligation to deliver the works also ceased on this date.
Background PTT and Triple Point entered into a bespoke contract for Triple Point to design, install, maintain and license software for PTT. The works were delayed and disputes arose as to payments due. Subsequently, Triple Point refused to perform, and PTT terminated the contract and sought numerous damages including LDs.
WIELAND PROVIDES THE ELECTRICAL CONNECTION FOR HMP FIVE WELLS
Wieland Electric has supplied a variety of products from the company’s gesis RST® and GST® ranges, along with low voltage lighting control and cabling in all cells and risers, for HMP Five Wells which is currently under construction in Wellingborough, Northamptonshire. The new Category C resettlement prison is set to open in early 2022 and is built on the site of the previously demolished Wellingborough Prison, which closed in 2012. HMP Five Wells will house 1,680 male prisoners and create around 700 jobs in the area. The project has been overseen by main contractor Kier and is embracing a Design for Manufacture and Assembly (DfMA) concept. This will integrate digital tools to drive efficiencies in the design, construction and operation of the facility. The project is the first in a series of schemes to be undertaken as part of the Ministry of Justice’s New Prison Programme. Wieland worked with building services providers Crown House Technologies to provide its RST® and GST® cable assemblies for the off-site prefabricated risers which fed the power, lighting and ancillary services to the individual prison cells and communal areas. All of the cabling in the cells was fully pluggable and incorporated Wieland’s GST® and GST® MINI systems. Wieland also supplied an extra low voltage lighting control system for cell lighting.
Eco World - Ballymore Embassy Gardens Co Ltd v Dobler UK Ltd [2021] EWHC 2207 (TCC) The Supreme Court Judgment of Triple Point was quickly followed by the TCC decision in Eco World – Ballymore Embassy Gardens Company Limited -v- Dobler UK Ltd (EWB v Dobler). Concerning a different aspect of liquidated damages, this case focusses on the application of an LD clause where partial possession has been taken. The judgment also opines on whether a LD clause would limit the contractor’s liability
STERLINGOSB ZERO, THE MULTI-USE PANEL PRODUCT West Fraser’s SterlingOSB Zero or ‘Sterlingboard’, as it is often known, is one of Europe’s most widely used and trusted structural panels. This should come as no surprise to anyone that has employed this incredibly versatile, strong and ‘green’ product; whether as the ‘go to’ solution on a construction site or as an aesthetically-important interior design element. Oriented Strand Board (OSB) is formed of flakes or strands of timber bonded with resin adhesives in some 50 cross-directional layers mechanically pressed to create a structurally engineered board. The SterlingOSB Zero range from West Fraser is stronger than ply, with no knots, voids or de-lamination. Among its multiple uses, SterlingOSB Zero is ideal for timber frame construction. The boards are designed to speed up the build process and are available in a wide range of grades, thicknesses and sheet sizes. For structural use in dry or humid load bearing situations, SterlingOSB Zero OSB3 is the board of choice. When undertaking dry lining, SterlingOSB Zero StrongFix quickly provides secure anchorage areas. Samples of SterlingOSB Zero, and West Fraser’s other construction panels, can be ordered on the website. Head to the website to download a selection of tools including a fully-interactive guide to all West Fraser products and a checklist to make sure you have everything you need for your build.
Pictured is SterlingOSB Zero Tongue and Groove
The design developed for HMP Five Wells supports the MoJ’s commitment to provide safe, secure and decent prison places with a focus on supporting rehabilitation.
Tel: 01483 531213
Web: www.wieland.co.uk
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For further information, call 01786 812 921 or visit Uk.westfraser.com
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