Buckingham loses liquidated damages case

Buckingham Group Contracting has lost a case in the Technology and Construction Court brought over a £26m contract to build a corrugated cardboard plant for Peel L&P Investments and Property.

It contested Peel’s attempt to deduct £1.9m in liquidated damages for delays to the works at Ellesmere Port in Cheshire.

But Alexander Nissen QC, sitting as a deputy High Court judge, found in his judgement against the grounds the contractor argued.

Buckingham said the liquidated damages were void and unenforceable under the contract, because parts of it were ambiguous.

The project used the JCT Design and Build Contract 2016, but with various amendments specific to the project.

Nissen said Buckingham argued “that the contractual provisions are so defectively drafted and/or incomplete that they are void for uncertainty and/or unenforceable”.

Buckingham said the contract contained two competing dates for practical completion and so it was impossible to tell from which any liquidated damages should run.

Nissen found this was not the case and said “the date from which liquidated damages run for non-achievement of [a milestone date] is clearly 30 November 2018”.

The different date given for completion of the works “is there for a different purpose”, he ruled.

Buckingham also claimed the contract had two sets of rates, “and it is impossible to discern which, if either, the parties intended should apply”, the court was told.

The judge said it was clear to him which was applicable and that, “beyond the fact that the parties took a short cut by copying and pasting a proposal document into the finally concluded document, there is no error, as such, which arises from the fact that the proposal document included a now redundant set of [liquid ascertained damages] rates in the left hand set of columns”.

Nissen concluded: “None of the arguments advanced by Buckingham in respect of the provision for liquidated damages… succeed. The provisions are certain and enforceable.”

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