Case Studies

Expert Report - Valuation of Repudiatory Breach - Client/Builder Dispute

Arbicon were appointed by the Client Claimant in respect of an Expert Report on the value of works carried out on repudiation of the contract. The Client had paid a large deposit at the outset to the builder who carried out a fraction of the work value then left site. Unfortunately, the builder refused to return any funds and due to a lack of contract in writing the Client was unable to pursue the Contractor without incurring legal costs against the builder who had no assets. The matter was not progressed.

Dispute on Payment for the Final Account

Value: £100,000Acting for the Main Contractor against the Sub-contractor on a hotel construction project which involved re-measurement under SMM 7. The tribunal ordered that the parties meet to discuss measurement and valuation, which resulted in a major reduction in the claim but some liability from the resulting discussions, leading to a commercial settlement of £25,000 plus part costs.

Dispute Payment for Materials Supply

Value: £150,000Acting for the supplier of construction materials on a major civil engineering electrical overhead line project, the Main Contractor refused to pay as damages were alleged arising from late delivery. The case included a preliminary hearing, a hearing on preliminary issues, protracted exchanges of pleadings, witness statements and a final trial hearing. Part way through the final hearing, one of the defendant's witnesses in cross examination revealed that the Client had admitted liability to the delay concerned and had paid a claim made by the Main Contractor, thus the case collapsed and an award was made in full to our Client.

Main Contract - New Offices

Value: £121,000Arbicon’s role was to prosecute the Claim of the Main Contractor against the Employer for a dispute payment of £121,000 for the Final Account including retention and the issue of the notice of completion of making good defects. After lengthy attempts to obtain the notice of completion of making good defects and thereafter the second moiety of retention, Adjudication was commenced. The Final Account was agreed, but retention was being held. Defects were agreed by the Architect as being complete, with a promise to issue the formal notice in evidence. The Employer then attempted to retain the retention on the basis of allegations over a defective AHU unit alleging it was under-designed. However, the Employer failed to appreciate that the specified ventilation installation to the two-storey building excluded the ground floor entirely as the tenant would carry out a separate fit out. The AHU was installed as specified thus no defective design could be argued. An outright win for the client.

Main Contract - Leisure Centre - Partitions & Ceilings Subcontract

Value: £251,000Acting for the Main Contractor, this case involved a rapid response defence to an Adjudication brought by the Sub-contractor for a dispute payment of £251,000 for the final account including Extension of Time and Loss and Expense. The case involved a large number of variations, together with an extension of time and loss/expense claim. There were numerous exchanges of quantum argument on what was a re-measurement contract and an intensive Adjudicator's meeting. The claimant's quantum and claim was badly prepared and fell foul of the simple dismissals for lack of evidence. This resulted in an award of only £9,000 including interest, representing a significant success for the client.

Groundwork Subcontract - Leisure Centre

Value: £115,000Acting for the Main Contractor, this case involved advising and defending a time and expense claim referred to Adjudication. The sub-contractor alleged numerous disruptions, which were recorded and claimed on daywork sheets. These events were numerous but little more than an hour or day at a time for 10% of the workforce on site. There was no evidence that these events had an impact on the overall time and added to this the losses, if any, were recovered in the daywork rates. Furthermore, the Adjudication had been brought prior to the expiry of the period allowed of 16 weeks to make a decision on the Extension of Time. The Claim brought on behalf of the sub-contractor by a claims consultant was thus erroneous and naive. The claimants did not make a case for an event which did cause delay to their works on the critical path, which had the potential to be raised. However, in any event it was unlikely that linked loss/expense and mitigation would be demonstrated. Despite the strength of the defence case, the client negotiated a final settlement with the claimant mid-adjudication with a payment of £30,000.

Main Contract - Retail/Flat Development, London

Value: £140,000Arbicon acted for the Main Contractor in preparing a Time and Expense claim and prosecution of the same together with the Final Account. An application for payment was submitted following submission of the claims prepared, which were not responded to or withheld in the contract time required. Under JCT 98 Design and Build, the payment mechanism is triggered by the submission of an application for payment. The Employer and his professional team did not respond in any way to the Claim submission by the final date for payment. At that juncture the application becomes the "sum due" under the Contract. Adjudication was commenced and following several discussions and legal advice the Client had to concede that he had to pay the full amount claimed, thus prior to making a response, a settlement on the Final Account was reached to the complete satisfaction of the Client. The matter was settled mid-adjudication with a payment of £90,000

M&E Subcontract - New Football Stadium

This dispute involved a legal argument over which programme or programmes applied to the project long after it had been completed. The parties executed the sub-contract oddly some three months after the works had reached practical completion, including a programme, which defined the period for completion and the basis for which the works would be completed. It was alleged by the claimant that this contract document should be disregarded and that actual events alleged to have occurred in the claimant's own programmes should take precedence based on intention and what they considered common sense. The implications were that if the claimant's programmes applied there was a case for disruption and delay, extension of time entitlement plus losses and expenses, these were valued at approximately £805,000 and would be claimed in a future Adjudication. The claimants were resisted on the grounds that firstly they had signed the contract, thus agreed to the Main Contractor programme, secondly this signing has retrospective effect, thirdly the main contract completed on time and fourthly the claimants had not taken heed of the clauses they had signed up to which included a condition precedent for the service of notices for extensions of time, which were all absent. The signing of the contract thus precluded any claim and the claim failed. This ended the pursuit of claim, indeed gave rise to a counterclaim, which was never prosecuted. The final account was eventually resolved, whether a sum was paid is unknown.

M&E Subcontract - New Offices

Value: £121,000Following completion of an Air Conditioning system, it was apparent that the client was experiencing difficulties with the installation. The Sub-contractor failed to remedy problems and demanded his retention. The Main Contractor employed others to produce an expert opinion, corrective design and rectify the failure in that design. The Main Contractor sued in court for the repair work as damages for breach of contract, Sub-contractor sued for the retention held. Following an investigation, it was clear through all the evidence that there had been a failure in design. The design was Sub-contractor’s responsibility and this fact was the overriding consideration in determining SC's liability. There followed a complex Adjudication setting out the claims of the Main Contractor in a high burden of proof case of damages for breach of contract. It was proved that the Sub-contractor was liable for damages and the quantum was proved in the expenditure by Main Contractor in altering the air conditioning system to the required level of design. Sub-contractor had previously commenced legal action for £13,000 for retention, this was offset against the award and the parties dispensed with the court proceedings. The client was very pleased with the outcome of £98,000 being awarded in damages for breach of contract.